This matter came
before Madison Equal Opportunities Commission, Hearing Examiner, Clifford E.
Blackwell, III, for a public hearing on the merits of the complaint beginning on
July 11, 2006, and continuing, off and on, through August 18, 2006. The
Complainant, Michael J. Miller, appeared in person and by his counsel, Michael
R. Fox of Fox and Fox, S.C. The Respondent, Credit Union National Association
(CUNA), appeared by its corporate representative, Richard McBride and by its
counsel, Lauri D. Morris of Quarles and Brady, LLP. Based upon the record of
these proceedings, the Hearing Examiner now issues his Recommended Findings of
Fact, Conclusions of Law and Interim Order as follows:

RECOMMENDED
FINDINGS OF FACT

1.The Complainant, Michael J. Miller, is an adult male, born on September
10, 1960.

2.The Respondent, Credit Union National Association (CUNA), is a nationwide
trade association of state-based member credit union leagues and credit unions.
The Respondent employs approximately 300 people in offices in
Madison
,
Wisconsin
and
Washington
,
D.C.

3.The Respondentís
Washington
,
D.C.
office is the base for its governmental relations and lobbying activities on
behalf of its member organizations. The
Madison
,
WI
office is the center for support and development service offered to its
members.

4.The Complainant initially worked for the Respondent between 1993 and
1995. He again worked for the Respondent between 1996 and 2004. He was
discharged on September 9,
2004.

5.Over the period of his employment, the Complainantís level of
responsibility and profile within the Respondent steadily increased. From 1993
to 1995, the Complainant served at Director of System Planning, selling and
facility training for member credit unions. In February, 1996, the Complainant
became the Director of New Business Development. He was responsible for
generating and developing new business ideas and opportunities.

6.In 1997, the Complainant became Vice President for the Center for
Professional Development. He maintained this position although in 2000, his
responsibilities grew to accommodate growth in the Respondentís business.

7.In 2002, the Respondent went through a company-wide restructuring as the
result of an independently contracted analysis and report. As part of this
restructuring, the Complainantís duties and responsibilities were increased.
He became responsible for the Respondentís second most profitable product
line, Executive Development, along with his responsibilities for marketing and
the sales resources associated with those responsibilities.

8.In 2004, at the time of his discharge, the Complainantís title was
Senior Vice President for Association Services. In this capacity, the
Complainant supervised, directly or indirectly, approximately 90 employees.

9.In 2003, the position of Chief Operating Officer (COO) for the
Respondentís
Madison
office opened when the then COO, Peter Crear, announced his intention to retire
from that position. The Complainant reported directly to Crear.

10.To fill the position of COO for the
Madison
office, the Respondent hired Yvonne Evers of HR Value Group to conduct a search
and to make recommendations for the position of COO. HR Value Group is a credit
union management resources and executive search consulting firm. Evers had
previously worked for the Respondent.

11.Evers met with the Respondentís President and Chief Executive Officer,
Daniel Mica. Mica was based in the
Washington
,
D.C.
office of the Respondent. Mica wished to change the direction of the
Respondentís
Madison
operations from that followed by Crear. Specifically, he wished to promote a
more team-oriented approach and to work more closely with state credit union
leagues.

12.The Complainant was one of several individuals who applied for the
vacancy. After review of application materials and an initial round of
interviews. Evers forwarded a list of finalists to Mica for consideration. The
Complainant was not among those named for further consideration.

13.The Complainant was very unhappy about not having his name forwarded for
further consideration. He contacted Evers and criticized her interview of him.
He complained to co-workers such as Mark Condon. Most importantly, he contacted
Mica and Micaís primary assistant, Richard McBride, to seek their intervention
and reconsideration of Eversís decision not to forward his name. McBride
serves as the Chief Operating officer for the
Washington
D.C.
office. He has worked with Mica in many different capacities over 30 years.

14.Mica and McBride, while believing that the Complainant was a talented
employee and a valuable asset to the Respondent, agreed with Evers assessment of
the Complainant regarding his lack of maturity and his need for additional
ďseasoningĒ before he would be ready for the position of COO. They declined
to intervene as requested by the Complainant.

15.Despite the fact that the Complainant would not be a final candidate, he
wished to remain a valued employee with the Respondent. In an email to Mica
dated December 3, 2003, the Complainant wrote, ďI wish I could convince you to
reconsider your decision. However, in the end, know that I am fully committed to
supporting you and whomever is ultimately named as COO.Ē

16.In late December of 2003, Mica selected John Franklin to be the new COO
in the
Madison
office.
Franklin
had been the President of the South Carolina Credit Union League until he was
fired shortly before his application for the position of COO.
Franklin
was instrumental in setting up and serving on the Board of Directors of HR
Value Group.
Franklin
began employment as COO in
Madison
,
WI
on January 2, 2004.

17.The Complainant was surprised by
Franklin
ís selection to be COO. He shared his concerns with others in the
Madison
office in late December, 2003 or early 2004. Despite his concerns, the
Complainant was committed to working with
Franklin
.

18.In the first few weeks of January, 2004,
Franklin
met with the Complainant and other managers to become familiar with their
duties and projects and to layout the direction in which Mica wished the
Respondent to head. At one of these meetings, the Complainant alerted
Franklin
to a developing/continuing problem involving one of the managers who reported
to the Complainant. The Complainant told
Franklin
that Dean Archer had been an abusive and bullying manager towards his employees
especially to those who were women.
Franklin
expressed his confidence in the Complainantís ability to appropriately handle
the problem.

19.In February of 2004,
Franklin
wished to improve Mark Condonís ďportfolioĒ of responsibilities. To
accomplish this,
Franklin
proposed to move ďPublicationsĒ from the responsibility of the Complainant
to Condon. Condon was the Senior Vice President of Research and Advice. Condon,
though the same supervisory level as the Complainant, had far fewer duties or
responsibilities justifying his position. Condon and Franklin were friends both
in and out of work.

20.The Complainant became aware of
Franklin
ís proposed transfer when he was called into a meeting with Franklin and
Condon. The Complainant objected to the transfer of ďPublicationsĒ, but
indicated that a transfer of ďExecutive DevelopmentĒ might better meet
Franklin
ís objectives. After discussion,
Franklin
agreed with the proposal put forth by the Complainant.

21.Though the transfer was proposed in February, it was not completed until
early March of 2004. The transfer of responsibility was made with the approval
of Mica and McBride.
Franklin
praised the Complainant for his proposal and his willingness to work for the
betterment of the Respondent.

22.By mid-April, 2004, the Complainant became aware of and concerned with
racist comments articulated by
Franklin
. One racist comment was a reference to customer service duties as "nigger
work." Another comment occurred in March, 2004 at a lunch where
Franklin
conveyed a story about investigating an incident during his employment in
South Carolina
where an African-American male piled wood under a car and ignited it as an
example that "black people generally are not very smart."

23.By mid-April, 2004, the Complainant became concerned with sexist
comments, references and innuendo that
Franklin
used during various communications in the office. There were instances where
Franklin
encouraged the Complainant to pursue sexual relations with current or
prospective CUNA board members as well as business contacts. Another instance
involved an email from
Franklin
to a female employee that stated, "put out your tongue and you'll get a
big surprise."
Franklin
also conveyed a story about a previous business associate scolding sales staff
for their euphemistic inability to sell "pussy on a troop train."

24.By mid-April, 2004, Miller was also concerned about homophobic comments
articulated by
Franklin
. One concerned a situation in which Mark Condon and Franklin exchanged
greetings with a credit union league president, after which Franklin remarked to
Condon, "they don't make league presidents like they used to,"
referring to the fact that the league president is openly gay. Another concerned
an inquiry
Franklin
directed at the Complainant regarding his sexual orientation because he
participated in a dinner theatre production.

25.In early 2004, the Complainant shared his concerns about
Franklin
ís comments with Harley Skjervem, the Respondentís Vice President in charge
of Human Resources in the
Madison
office. Skjervem was also concerned about the inappropriateness of
Franklin
ís sexual jokes and profane references.

27.After receiving the Complainantís report, Cooper met with
Franklin
that evening and explained that discriminatory comments are not acceptable.
Cooper reported her actions to the Complainant via voicemail on April 23, 2004.
Cooper did not alert Mica to
Franklin
ís discriminatory comments or conduct.

28.The Complainant believed that Cooper should have brought the allegations
concerning
Franklin
to Micaís attention.

29.In early April of 2004, Mica asked all managers to prepare a Succession
Plan. A Succession Plan is a document outlining how oneís duties or
responsibilities should be carried out in the event of a lengthy unexpected
absence.

30.The Complainant, on April 28, 2004, completed his Succession Planning
document. In returning the Succession Planning document to Mica, the Complainant
wrote, "I am very concerned with the direction our
Madison
operation is headed. I find an emerging culture that has an ever growing
current which runs counter to my personal values, character and integrity. These
same concerns have been raised to me by peers as well as staff.Ē

31.On April 29, 2004, the Complainant reported his concerns to Mica during a
telephone call in response to the comments in the Succession Planning document.
The Complainant specifically represented
Franklin
's comments as sexist, racist and homophobic.

32.Mica was dismayed to learn of the complaints involving
Franklin
. He immediately spoke with
Franklin
about the complaints he had just received. Mica also directed McBride to speak
with
Franklin
about the seriousness with which Mica viewed the complaints.

33.McBride spoke with
Franklin
as directed by Mica during a break in a meeting held in
Georgia
shortly after Micaís conversation with the Complainant.

34.It is not clear how
Franklin
became aware that the Complainant was the individual responsible for the
complaint made against him. However, the latest date
Franklin
must have learned, or concluded, that the Complainant reported
Franklin
for discriminatory comments was May 20, 2004, when
Franklin
told Archer not to trust the Complainant under any circumstances.
Franklin
told Condon that the Complainant had reported Franklin and Archer for their
discriminatory conduct.

35.The Complainant had filed a complaint on behalf of Roberta Bischke
against Archer with Cooper in late March, 2004. After a brief investigation, it
was concluded that Archer had violated several of the Respondentís policies.
Condon, who had become Archerís supervisor in late February or early March,
developed a plan that, if completed, would preserve Archerís employment.

36.The Respondent addressed the complaints against
Franklin
, in part by having
Franklin
issue a public apology in early June, 2004. The Respondent also conducted
mutual respect training in the summer of 2004.

37.In response to an inquiry from Allen McMorris, the Complainant mentioned
his concerns about
Franklin
to McMorris, a CUNA board member, during the June, 2004 board meeting held at
the Monona Terrace in
Madison
,
WI
.

38.The Complainant also reported his concerns about
Franklin
to Evers during a business trip to the
Bahamas
in July, 2004. Evers reported Miller's general concerns to McBride and Mica
during that same business trip.

39.Despite his public apology and the diversity training conducted by the
Respondent,
Franklin
made additional sexist comments at a ropes course in July of 2004. The
Complainant learned about these comments from Tom Decker and David Rohn; the
Complainant conveyed his concerns to Skjervem in late July or early August of
2004. In this conversation with Skjervem, the Complainant stated he felt the
issues with Archer and
Franklin
had not been resolved.

40.
Franklin
made additional sexist comments in the presence of David Rohn regarding a
desire for sexual contact with local high school girls.

41.McBride wrote an email to Mica on June 18, 2004, describing poor
relations between the Complainant and Franklin and stating, "We may lose
Mike . . . I don't think he can get his ego out of the way. He is not supporting
John." Another email dated June 28, 2004, from McBride to Mica and carbon
copied to Franklin, references the comments the Complainant made in the April
27, 2004 Succession Planning document and suggests Mica should meet with Miller
to discuss the situation.

42.Neither Mica nor McBride urged
Franklin
to take steps to repair the dysfunctional relationship
Franklin
had with the Complainant as identified in the June 18, 2004 email. Neither Mica
nor McBride did other than encourage the Complainant to work more closely with
Franklin
. No one investigated the basis for the break down in the relationship between
Franklin and the Complainant.

43.Subsequent to Franklinís telling Condon that the Complainant was the
individual responsible for the complaints against Franklin, Condon, on two
separate occasions in June or July, told Vicki Joyal, one of his superviseeís,
that the Complainant had done something that would get him fired. In early
August, 2004, Condon wrote that either the Respondent would need to fire the
Complainant or Condon would have to consider leaving.

44.During the July meeting in the
Bahamas
, Archer told McBride that the Complainant told Archer to sue the Respondent for
unfair treatment. McBride also spoke to the Complainant during this meeting
recommending that he should work through his issues with
Franklin
. McBride also recommended a specific book for the Complainant to read.

45.During the July meeting in the
Bahamas
, Mica again spoke to
Franklin
expressing displeasure with
Franklin
ís prior discriminatory comments.

46.On August 9, 2004, after returning from the conference in the
Bahamas
, McBride recommended to Mica that the Complainant be terminated. Mica expressed
disappointment with the situation and suggested that McBride get more
information before Mica would approve the termination.

47.McBride contacted Cooper on August 9, 2004, stating they had no
"smoking gun" or other evidence of insubordination to fire the
Complainant. McBride directed Cooper to interview Millar, Evers and Condon in
order to get more information concerning termination of the Complainant. During
Cooper's investigation, Millar reported the Complainantís comments about the
Complainantís efforts to get fired. Evers relayed to Cooper her July, 2004
conversation with the Complainant where he reported
Franklin
's discriminatory conduct. Condon reported a variety of negative thoughts about
the Complainant. Cooperís investigation also indicated Millar and Condon felt
the Complainant was not supportive of
Franklin
.

48.Neither Mica, McBride nor Cooper spoke with the Complainant in an attempt
to ascertain the accuracy or veracity of the reports from Millar, Evers or
Condon.

49.At no time did the Respondent place the Complainant on notice that he
could or would be terminated if his unsatisfactory conduct did not improve.

50.There were other executives who were terminated without prior notice that
their conduct should be improved. The Complainant did not commit the same kinds
of misconduct that warranted the termination of other executives without notice.

51.The decision to terminate the Complainant was finalized by August 13,
2004. McBride, Mica and
Franklin
participated in or had influence on the decision making process. Cooper and/or
Skjervem prepared Millerís severance package.

52.On September 9, 2004, McBride and Franklin summarily informed the
Complainant he was fired. Following that meeting, Cooper and Skjervem met with
the Complainant to discuss a possible severance package.

53.At the time of his termination, the Complainant made $153,055.00 per
year. He received a package of benefits that was equal to 21% of his base
salary. At the end of each year of employment, the Respondent customarily
granted employees in the Complainantís range a 6% increase in salary for the
following year.

54.In the twenty-two months prior to hearing, the Complainant applied for a
total of sixty-three positions from which he received eleven interviews. The
Complainant used various communication methods to contact potential employers;
he did follow up on some, but not all job applications.

55.The Complainant started a consulting business in Fall, 2004 by the name
of Imagine Training Solutions, L.L.C. Prior to hearing, the Complainant earned
$30,000.00 in 2004 from this source of self-employment. In addition to his work
as a self-employed, independent consultant, the Complainant continued to seek
additional employment to replace lost salary and benefits.

56.The Complainant remains self-employed as an independent business
consultant.

57.The Complainant, at the time of hearing, was considering the possibility
of returning to university to obtain a Masterís degree in order to help
replace his lost income.

58.It is not clear as of the undersigned date, if the Complainant has
managed to replace his lost income and benefits or how long it will take him to
do so.

59.As a result of his termination by the Respondent, the Complainant has
been excluded from his social group, lost income, lost the opportunity to
advance within his chosen employer, lost health insurance and other benefits.
The Complainant has experienced emotional distress in having to explain to his
son the loss of income, insurance and regular employment.

RECOMMENDED
CONCLUSIONS OF LAW

1.The Complainant exercised a right protected by the ordinance when he
complained to a variety of individuals about
Franklin
ís sexist, racist and homophobic statements.

2.The Respondent is an employer within the meaning of the Equal
Opportunities Ordinance and is subject to its requirements and dictates.

3.The Respondent violated the ordinance when it terminated the Complainant
for his exercise of a right protected by the ordinance.

4.The record does not demonstrate that absent the Complainantís
complaints about
Franklin
ís comments, conduct and statements that the Respondent would have terminated
the Complainantís employment.

5.The Complainantís self-employment as a consultant was undertaken in
good faith; on this record, it is a reasonable alternative to seeking other
comparable employment.

6.Despite its futility, the Complainant put forth reasonable and diligent
efforts to find work following his dismissal from Respondentís employ.

7.The Employment relationship between the Complainant and Respondent cannot
be successfully reinstituted due to the level of mutual animosity between them.

8.The Complainant has experienced a level of emotional distress for which
he must be compensated in order to be made whole.

9.In order to be made whole, the Complainant must receive the costs and
fees associated with his bringing of this complaint.

INTERIM
ORDER

1.The Respondent shall cease and desist from any further retaliation
against the Complainant.

2.The parties shall, within 20 days of the undersigned date, attempt to
stipulate to the level of back pay damages necessary to place the Complainant in
as good a position as he would have been absent the Respondentís retaliation,
excepting any amounts of actual income received by the Complainant during this
period. Back pay shall include benefits calculated at the level of 21% of base
salary.

3.If a stipulation pursuant to item 2 above is not reached within the
prescribed period, the Hearing Examiner will schedule further proceedings to fix
such amounts.

4.Once back pay is established pursuant to either paragraphs 2 or 3 above,
the parties shall adjust those amounts by 4% pre-judgment interest for the
period from September 9, 2004 until the date upon which back pay is
actually paid.

5.Once the period for stipulation of back pay damages specified in
paragraph 2 above has lapsed, the Hearing Examiner will schedule further
proceedings to determine, what, if any, front pay is appropriate.

6.The Respondent shall pay to the Complainant, no later than 30 days from
the issuance of a final order in this matter, $75,000.00 for the emotional
distress experienced by the Complainant.

7.Within 15 days of a final order being issued in this matter, the
Complainant shall submit a petition for his costs and fees including a
reasonable, actual attorneyís fee expended in bring this complaint. The
Respondent may file any objections to the form or substance of the
Complainantís petition within 15 days of its receipt.

MEMORANDUM
DECISION

This
case presents a claim of retaliation for the exercise of rights protected by the
ordinance, but this complaint is not as complicated as it may first seem. The
record is more than extensive and runs far afield from the essential issues of
the complaint.

For the
Complainant to prevail, he must demonstrate by the greater weight of the
credible evidence that he exercised a right protected by the ordinance, that he
experienced or suffered an adverse employment action and that the adverse
employment action resulted, at least in part, from his exercise of a protected
right. Flowers v. Charlton Group, MEOC Case No. 20002129 (Ex. Dec.
9/17/02). In determining whether the exercise of a right protected by the
ordinance falls within the coverage of the retaliation claim, there must be
evidence that the right was exercised in good faith. Also, as is always the case
in a discrimination or retaliation claim, the Complainant must have been
adequately performing the duties of his job. Id.

The
Complainant must carry the requisite burden of proof as to each element. The
Complainant carries the ultimate burden to demonstrate retaliation. As with
discrimination claims, the Complainant may either utilize proof by direct
evidence or use the indirect method set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) and Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248 (1981).

In the
direct method, the Complainant presents evidence and arguments based upon that
evidence and the reasonable inferences stemming from that evidence to support
each element of the claim of discrimination. Direct evidence may include
statements that on their face evince a discriminatory or retaliatory attitude or
can reasonably be understood to demonstrate such an impermissible motive. In the
direct method, the Respondent may either attack the sufficiency of the
Complainantís evidence or seek to demonstrate another reason for the
Respondentís action.

In the
indirect method, the Finder of Fact must examine the record to determine if the
evidence, including the reasonable inferences to be drawn from that evidence,
supports the conclusion that retaliation was, in some part, more likely the
reason for the Complainantís termination than was some other nondiscriminatory
or nonretaliatory rationale.

In
utilizing the McDonnell Douglas/Burdine paradigm, the Complainant must
first establish the prima facie claim as noted above. Presuming that the
Complainant makes such a demonstration, the Respondent then must offer a
legitimate, non-discriminatory/non-retaliatory explanation for its actions. This
is not a burden of proof, but merely one of production. Should the Respondent
meet this modest burden, the Complainant may still prevail by demonstrating that
either the Respondentís explanation is not credible or represents a pretext
for an otherwise discriminatory or retaliatory reason.

In some
cases, especially those where the parties have had an opportunity to fully
litigate the claims of discrimination or retaliation, a broader method may be
utilized. U.S. Postal Service Bd. of Governors v. Aikens, 460
U.S.
711 (1983). In this approach, the Hearing Examiner may review the record as a
whole and reach the ultimate question, that of retaliation or not, without
falling back upon the more specific approach of the McDonnell Douglas/Burdine
test.

Given
the extensive nature of this record including the fact that the record exceeds
2,500 pages, the Hearing Examiner favors the Aikens approach. In
utilizing this approach, the Hearing Examiner bears in mind that it is never the
Respondentís burden to establish that it did not discriminate or retaliate.
The ultimate question in this complaint is whether the Complainantís exercise
of rights protected by the ordinance played any part in the Respondentís
decision to terminate his employment.

BACKGROUND
SUMMARY

The
Complainant, Michael Miller, is an adult male born September 10, 1960. He began
work for the Respondent, Credit Union National Association, Inc., in 1993. He
continued until some point in 1995. He again worked for the Respondent from 1996
until his termination in 2004.

The
Complainantís level of responsibility and profile within the Respondent
steadily increased during his tenure. From 1993 to 1995, the Complainant served
as Director of System Planning, overseeing, selling and facilitating training
for credit union members. When the Complainant returned to employment with the
Respondent in February of 1996, he assumed the position of Director, New
Business Development, with responsibilities for generating and developing new
business ideas. In 1997, the Complainant became Vice President for the Center
for Professional Development. In 2000, his responsibilities expanded along with
the Respondentís growth. In 2002, a company-wide restructuring was announced
in response to an independent study. The 2002 restructuring resulted in
increased responsibilities for the Complainant. His final title with CUNA was
Senior Vice President of Association Services.

The
Complainant was in charge of the Respondentís second largest revenue producing
product line, Executive Development, and its marketing and sales resources. At
the time of his termination, the Complainant directly or indirectly supervised
approximately 90 employees.

The
Respondent is a trade association for the credit union industry. It renders
services as a lobbyist and provides training, educational opportunities and
other products for its member associations. The national headquarters for the
Respondent are located in
Washington
D.C.
The headquarters for the member services and operational offices of the
Respondent are located in
Madison
,
Wisconsin
.

Daniel
Mica is the Respondentís Chief Executive Officer. His primary assistant is
Richard McBride. The position of Chief Operating Officer (COO) reports to Mica.
The Chief Operating Officerís office is located in
Madison
.

The
Complainant had been a long term and successful employee of the Respondent. In
2003, the opportunity to further advance in the company was presented when the
Chief Operating Officer for the
Madison
office, Pete Crear, retired. The Complainant applied for the position, but
failed to make the cut for interviews. He was upset by this determination and
felt that he had much more to offer. He was reassured by the upper management of
the company that he was considered a valuable employee who still had a bright
future with the Respondent.

The
Respondent hired John Franklin for the position of COO.
Franklin
had worked in the South Carolina Credit Union League. He also was on the Board
of Directors of HR Value Group, the organization that had conducted the search
for applicants for the COO position.

Franklin
took over the COO position in
Madison
,
Wisconsin
at the beginning of January, 2004. As one of his first tasks,
Franklin
met with the senior managers including the Complainant to let them know of
Franklin
ís directions and to find out what the managers were doing. At
Franklin
ís first meeting with the Complainant,
Franklin
made it clear to the Complainant that the Complainant was highly regarded by
the Respondentís management team, including Mica and McBride, and that the
Complainant was likely to be
Franklin
ís eventual successor as COO.

The
Complainant told
Franklin
of his ongoing projects and alerted
Franklin
to a developing issue involving Dean Archer, a manager with duties under the
Complainant. For some considerable period of time, there had been complaints
that Archer was abusive towards his employees and especially so towards female
employees. The Complainant warned
Franklin
that Archerís conduct posed a potential source of legal liability for the
Respondent.
Franklin
urged the Complainant to do what was necessary to address the Archer problem.

With the
exception of some reorganization of staff and offices and negotiations that
occurred around such changes, little of note happened business-wise for the
first three and a half months of 2004. While this time seemed to have been a
period of adjustment to style and new directions, not all was peaceful.

The
Complainant and at least one other manager became aware and concerned about
Franklin
ís use of sexually explicit language in a business context. There were also
instances of racially degrading language and at least one instance of
potentially homophobic joking. Both the Complainant and Harley Skervjem, Vice
President of Human Resources, were troubled by
Franklin
ís language and they shared their concerns with each other. Eventually, the
Complainant, believing that
Franklin
ís language created a potentially serious problem for the Respondent, went to
Judy Cooper, the Respondentís legal counsel based in
Madison
. The Respondentís Corporate Counsel was based in
Washington
,
D.C.
, but Cooper handled legal matters in the
Madison
office.

The
Complainant expected that after investigation Cooper would take the
Complainantís concerns to Mica or McBride. Instead, Cooper chose to speak with
Franklin
directly. She did so on the evening of April 22, 2004. The next day, Cooper
left the Complainant a voice mail message indicating how she had handled his
complaint. Among other things, Cooper and Franklin determined that a public
apology to the employees of the Respondent would be appropriate. The Complainant
was somewhat dissatisfied with Cooperís approach, but did nothing further
about his concerns at that time.

Early in
April, Mica sent each of the Respondentís managers requests for Succession
Plans. A Succession Plan is a document that describes how a transition should
occur in the event of the loss of an employee. On or about April 28, 2004, the
Complainant submitted his Succession Plan to Mica. In that document, the
Complainant expressed his concern for a change in the culture of the Respondent
that ran contrary to the Complainantís personal values.

Upon
reading the Complainantís comments in the Complainantís Succession Plan,
Mica sought to discuss the Complainantís concerns with the Complainant. The
record is not entirely clear about how contact was made, but on April 29, 2004,
Mica and the Complainant discussed the basis for the Complainantís concerns.

The
Complainant told Mica of Franklinís comments and described them as sexist,
racist and homophobic. Mica was unhappy that one of his managers was engaged in
such conduct. After the discussion with the Complainant, Mica communicated his
concerns to
Franklin
, and also instructed McBride to meet with
Franklin
and make
Franklin
aware of how unacceptable his language was. Shortly after McBride and Mica
discussed
Franklin
ís comments, the Respondent held a meeting in
Georgia
. During a break of activities at this meeting, McBride took
Franklin
aside and discussed Micaís concerns with him. It is a matter of some dispute
whether McBride told
Franklin
the source of the complaints about
Franklin
ís language.

As noted
above, the period from the beginning of the year until April 22, 2004, and
especially April 29, 2004, was relatively calm. The two primary exceptions both
involve Archer. First, at the end of February, 2004, the office in which Archer
worked was transferred from reporting to the Complainant to reporting to Mark
Condon. Condon was the Senior Vice President of Research and Advice. Originally
a transfer of different units was proposed, but the Complainant demonstrated to
Franklin
ís satisfaction that the transfer of Archer made more organizational sense. On
or about March 23, 2004, the Complainant, with the consent of Bobbi Bishke,
filed a complaint about Archer with Cooper. The complaint outlined Archerís
mistreatment of his staff and other employees. After a rudimentary
investigation, it was determined that Archer had engaged in inappropriate
conduct and a plan to deal with the allegations against Archer was developed.

Development
of the plan and its implementation fell to Condon who had become Archerís
supervisor in February. Presuming that Archer successfully complied with the
plan, Archerís employment would not be terminated. The plan included moving
Archerís office to a different floor to permit ready observation of his
interactions with employees, a temporary freeze in his salary, loss of his
supervisory duties and attendance at an external training center to receive an
evaluation and coaching on his management style. Archer was also to apologize to
his former supervisees.

While
these two events had significance for those involved, they did not signal a
major disruption in the operation of the Respondent. Though the Complainant was
involved to some extent in these events, he was not a major participant beyond
filing the initial complaint with Cooper.

After
the Complainant made his complaint to Mica on April 29, 2004, he became subject
to greater scrutiny and criticism. On or about May 20, 2004,
Franklin
had learned from someone or had determined on his own that the Complainant was
the source of the complaints against him. On or about May 20, 2004,
Franklin
went to Archer and told Archer under no circumstances should Archer trust the
Complainant. Also, at some point after being chastened by McBride,
Franklin
told Condon that the Complainant was the source of the complaints.

In early
June, 2004,
Franklin
held two meetings to apologize to Respondentís staff in
Madison
. However,
Franklin
ís apologies were so vague that some employees did not know or understand the
underlying reason for the apology.

At the
June, 2004 Board meeting held at Monona Terrace, the Complainant had a
discussion with Al McMorris. McMorris was a member of the Board and was familiar
with the Complainant. During this conversation, the Complainant told McMorris
that he was unhappy about
Franklin
ís inappropriate language. McMorris suggested that the Complainant take his
concerns to Mica or McBride. The Complainant indicated that he had and that an
apology had been forthcoming. However, the Complainant was still upset about the
incidents. McMorris had no other suggestion and believed that the Complainant
was really unhappy about his not having been promoted to COO instead of
Franklin
.

In June
or July of 2004, Condon joined the group of managers seeking to discredit the
Complainant. In her testimony, Vicky Joyal stated that on two occasions Condon
told her that the Complainant had done something that would get him fired. Joyal
reported to Condon and eventually left the Respondentís employ in 2005 due to
reduction in force. There was never any identification to what Condon was
referring. Given the timing, a reasonable inference is that he was referring to
the Complainantís complaints about
Franklin
to Cooper and Mica. During cross examination, Condon appears to corroborate
Joyalís testimony and indicates that the incident to which he refers was the
Complainantís report of
Franklin
ís conduct.
Franklin
identified the Complainant as the source of these complaints to Condon in May
or early June of 2004.

It
should be noted that Condon and the Complainant had not been friendly during
their employment with the Respondent. Both were Senior Vice Presidents, but
their working relationship had always been rocky. The Complainant criticized
Condon and the work of his employees. The Complainant had been more outwardly
successful in that he supervised a greater number of employees and was
responsible for a greater number of the Respondentís programs and products. It
is this imbalance of supervisory responsibility that
Franklin
wished to adjust when he proposed the transfer of units from the Complainant to
Condon in February, 2004. At hearing, Condon was often combative and gave no
appearance of liking the Complainant.

Given
Condonís feelings for the Complainant, it is more likely than not that
Joyalís testimony is true. Condon would seem to be the type of individual who
would gladly tell another of the Complainantís misfortune.

By the
end of June, 2004, McBride also joined the clamor of those seeking to discredit
the Complainant. In a June 18, 2004 email to Mica, McBride stated that we (the
Respondent) might lose Miller because he canít get his ego out of the way.
There is nothing in this email to indicate in what way or ways the
Complainantís ďegoĒ is getting in the way of the company. Wes Millar, Vice
President of CUNA Strategic Services, Inc., testified that the Respondent was
experiencing the best year of profitability in his memory, a fact generally
agreed to by the Respondent. Millar also stated that though the Complainant was
less active and connected in meetings that he attended with the Complainant,
Millar never observed the Complainant do anything wrong.

McBrideís
email comes shortly after
Franklin
ís ďpublicĒ apology to the staff of the Respondent. This apology was so
vague that many staff members were unable to determine for what
Franklin
was apologizing. Jill Tomalin, the individual who eventually replaced the
Complainant after his termination, was upset about the apparent lack of
seriousness on the part of the Respondent to address issues such as sexism in
the workplace and a growing ďgood olí boysĒ network. The Respondent, in an
attempt to try to bring staff together held a series of trainings on the issue
of harassment in the workplace, including a ďropes courseĒ to strengthen
team building. The ďropes courseĒ was held during the early summer months of
2004. Despite
Franklin
ís recent public apology to the staff, two employees of the Complainant
reported that
Franklin
made demeaning comments about women and the ropes course. These employees
shared these comments with the Complainant who in turn shared them with Skjervem.
Along with the Complainant, Skjervem was the member of the management team who
had objected to
Franklin
ís earlier sexist statements.

With
this fairly recent evidence of continued misconduct on
Franklin
ís part, the Complainant and several other employees of the Respondent
traveled together to the summer conferences of AACUL and WCOCU held in the
Bahamas
that year. Due to a number of factors, including weather and booking problems,
the group was held over in
Cincinnati
for hours. During this layover, the Complainant took part in two brief, but
important conversations. It is not clear in which order these conversations
occurred.

One of
these conversations took place between the Complainant and Yvonne Evers in the
waiting area. Evers was the CEO of HR Value Group. She was the individual who
was responsible for not recommending the Complainant for an interview during the
hiring process for the COO position. She was also the individual who was
responsible for forwarding
Franklin
to the final interview stage.

Evers
asked the Complainant how things were going with
Franklin
. The Complainant gave Evers his honest opinion that
Franklin
ís sexist, racist and homophobic comments made him a disaster for the
Respondent. Evers was shocked by the Complainantís statements and no further
discussion of business or other matters occurred.

The
other conversation was with Wes Millar. Because the Complainant and Millar had a
somewhat unusual conversation several weeks before, Millar asked the Complainant
how things were going. The Complainant replied that he (the Complainant) was
still there. The Complainant declined Millarís offer to join other employees
in the lounge. Millar observed that the Complainant was in a ďbad mood.Ē

Millar
understood the Complainantís statement that he was still there to be a
reference to a comment made by the Complainant to Millar during a meeting
several weeks earlier. In that earlier conversation, the Complainant told Millar
that he (the Complainant) had been trying to get himself fired, but that it
hadnít worked yet. Millar stated that he did not take either statement as a
jest despite the unusual nature of the statements for a Senior Vice President.

Almost
immediately upon entering the credit union meetings in the
Bahamas
, Evers reported the Complainantís statements to McBride and eventually to
Mica. Evers testified that she felt that she must have made a terribly wrong
decision with respect to
Franklin
. McBride indicated that he and Mica were very happy with the work of
Franklin
. McBride did not attempt to speak with the Complainant about these statements
or any other matter during the meetings beyond normal business. The record is
disputed about McBrideís limited contact with the Complainant. The Respondent
asserts that the Complainant stated that he did not know if he could work with
Franklin
in the way Mica and McBride dictated. If he couldnít, he should be fired. The
plausibility of McBrideís testimony in this regard is discussed elsewhere.

The
Bahamas
meetings took approximately 10 days in late July and early August of 2004. When
McBride and Mica returned to the Respondentís offices in
Washington
,
D.C.
, McBride went to Mica and recommended the termination of the Complainant. While
Mica generally agreed with McBrideís recommendation, Mica directed McBride to
do some additional investigation to see if the Complainantís employment could
be saved.

McBride
contacted Cooper and told her of Micaís wishes. At McBrideís direction,
Cooper interviewed Condon, Evers and Millar around August 9, 2004, and reported
back to McBride. It must be said that three less likely individuals to speak in
favor of the Complainant could not have been selected.

After
conducting the required interviews, Cooper reported back to McBride that there
was no evidence that the Complainant had violated any policy, rule or procedure
of the Respondent, i.e., ďno smoking gun.Ē McBride, after asking
Franklin
if he wanted to retain the Complainant, still determined that the Complainant
must be terminated. On September 9, 2004, McBride came to
Madison
and told the Complainant of the decision. After a brief meeting with McBride,
the Complainant met with Cooper and Skjervem to attempt to work out a severance
agreement.

ANALYSIS

What
is most striking to the Hearing Examiner when viewing the record as a whole is
the rapid and marked change in the Complainantís standing subsequent to his
discussions with Mica on April 29, 2004. For the first third of the year, the
Complainant was viewed as a ďrising starĒ and ďthe likely successorĒ to
Franklin
. There were no complaints of poor performance or lack of support for
Franklin
ís or Micaís ďmaster plan.Ē Within a double handful of weeks after the
report of
Franklin
ís indiscretions,
Franklin
was warning employees not to trust the Complainant and reporting what in all
rights should have been a confidential conversation to a peer. McBride, an
individual who viewed the Complainant favorably as late as April, 2004, now
believed the Complainant would likely lose his job.

In
another five weeks after the Complainant once again expressed his unhappiness
with
Franklin
ís sexist, racist and homophobic language, McBride recommended the
Complainantís termination. After a ďstacked deckĒ investigation, including
asking for the input of the individual against whom the Complainant had
complained, the Complainant was terminated.

The
focal point around which this change in fortune revolves is the Complainantís
report of
Franklin
ís discriminatory language to Cooper and to Mica. The record reveals no other
critical incident that might cause such a change in attitude. Equally, there
does not appear to be an accretion of smaller incidents leading up to the
conclusion that the Complainant was working to undermine
Franklin
ís authority.

The
Respondent asserts that the Complainantís statements to Mica form the only
potential basis for liability. Given the record, the Hearing Examiner disagrees.
The Complainant continued to oppose
Franklin
ís conduct with critical statements to McMorris in June of 2004 and to Evers
and Skjervem in July of 2004. It is the accumulation of these events that leads
to the Complainantís termination. However, it is the Complainantís
discussion with Mica that appears to start the Complainant down the path to
termination.

The
Respondent contends that the Complainantís opposition to
Franklin
ís statements was not the reason for his termination. Rather, the Respondent
states that it was the Complainantís inability to accept
Franklin
as COO and the fact that he (the Complainant) had not been selected that
ultimately led to the end of his employment. In the Respondentís view, the
seeds of the Complainantís downfall were planted when he reacted so strongly
to the news that he had not been selected by Evers to move to the next level of
interviews. The Complainant contacted Evers, complained to Condon, and requested
the intervention of Mica and McBride all during the fall of 2003. He spoke and
met with Mica on several occasions about his disappointment and his belief that
he would be able to lead the Respondent with a new vision for the future. In
December of 2003, the Complainant met specifically with Mica. Mica stressed the
importance of the Complainant being a team player and emphasized his long term
prospects with the Respondent.

The
Respondent argues that once
Franklin
began working in the
Madison
office, the Complainant resisted
Franklin
ís efforts to reorganize the office. The Respondent emphasizes that as time
passed, the Complainant became more and more unhappy with the change in
direction taken by the Respondent.

The
Respondent produced many different witnesses to support its contention that the
Complainant attempted to undermine
Franklin
ís effectiveness and that the Complainant was not a team player working for
the good of the Respondent. These included McBride, McMorris, Condon, Archer,
Loether, Tomalin, Decker and Millar. These witnesses testified to a variety of
comments and incidents that the Respondent asserts demonstrate a dissatisfied
and unhappy employee whose presence provided a distraction and disruption to the
operation of the Respondent.

Tomalin
and Loether testified to observing the Complainantís attitude in staff
meetings and after meetings with
Franklin
. They stated that the Complainant would be in a bad mood or disappointed. They
testified that the Complainantís attitude created dissent. Tomalin and Loether
reported to the Complainant prior to the Complainantís termination. Tomalin
eventually replaced the Complainant. Both were still employed by the Respondent
at the time of hearing.

Tom
Decker also testified that the Complainantís attitude towards
Franklin
deeply affected his attitude towards
Franklin
and the efforts made by
Franklin
. Decker testified that he eventually was able to judge for himself that
Franklinís policies and initiatives were good for the Respondent and that the
Complainantís negative judgment was in error and counterproductive. At the
time of hearing, Decker was no longer employed by the Respondent. He was a
consultant whose primary clients were in the credit union industry. It appeared
that Decker maintained substantial business contact with the Respondent.

Al
McMorris testified that the Complainant told him that he (the Complainant) was
unhappy with the selection of
Franklin
as COO and that the Complainant would have been a better selection. On this
record, it does not appear that the Complainant stated this outright, but
McMorris interpreted the Complainantís unhappiness about Mica and McBrideís
action because the Complainant felt that he should have been named to the
position of COO. McMorrisís testimony is premised solely on McMorrisís
assumptions given the Respondentís position in this litigation. This
conversation with McMorris demonstrates that the Complainant still had
objections to
Franklin
ís comments and felt that not enough had been done.

McMorrisís
testimony about how he came to attribute the Complainantís continued concern
to him not getting the COO position is not credible. First, there is no showing
that McMorris, in June, 2004, had any reason to make such a leap. He testified
that he had heard nothing that would lead him to that conclusion. It must be
noted that at the time of hearing, McMorris expected to either be elected
President of the Respondentís Board of Directors or to stand for election for
that position. As such, McMorris would be expected to adjust his testimony to
most favor the Respondent.

Condon
and Millar testified, in varying degrees, about their experiences in dealing
with the Complainant and observing the Complainantís attitude towards
Franklin
and
Franklin
ís selection as COO. Millarís observations were limited and his conclusions
drawn from a paucity of data. Condon and the Complainantís long history of
animosity and competition do not lend credibility to Condonís descriptions of
the Complainantís subversive efforts. However, Condon did give many different
examples of how the Complainantís attitude and feelings that he (the
Complainant) should have been promoted to the position of COO created division
and dissension in the office and operation of the Respondent.

Before
turning to the Hearing Examinerís views of the credibility of some of the
individuals who testified on behalf of the Respondent, the Hearing Examiner will
discuss some of his observations, conclusions and views on the particular
arguments set forth by the Respondent. First, in a very practical sense, the
ultimate consequences of the Respondentís position lacks real world
credibility. Essentially, the Respondent is saying that in a highly competitive
world it wants quiet and peace over an aggressive and wide ranging competition.
It seems to the Hearing Examiner that the Respondent would wish to foster the
Complainantís and other employeesí desire to excel and to demonstrate the
ability to lead the Respondent in the future. The Hearing Examiner concedes that
it may be desirable for a companyís upper management to be on the same page;
however, this would seem to be a matter of focus more than termination.

Another
general observation is that given the record as a whole, the actions of the
Respondent do not appear consistent or logical. At the beginning of 2004, the
Respondent believed that the Complainant was a valuable member of the
Respondentís Management Team.
Franklin
told the Complainant that Mica and McBride valued his (the Complainantís)
contributions and the Complainant was likely to be
Franklin
ís successor at some point in the future. However, accepting that the
Respondent found the Complainantís later actions or statements objectionable,
the Respondent took virtually no action to preserve the employment of the
Complainant. It did not provide the Complainant with counseling. It did not try
to work out any apparent problems between Franklin and the Complainant through
any direct meetings. It did not involve the Complainant in any form of
progressive discipline. While Mica and McBride may have urged the Complainant to
cooperate or work more closely with
Franklin
, there is no indication of any threat to the Complainantís employment.

The lack
of effort to preserve the Complainantís employment is particularly striking in
light of the steps taken with respect to Dean Archer. Archer was a manager who
reported to the Complainant. Apparently for a significant period of time, Archer
was an abusive manager particularly, though not exclusively, with respect to his
supervision of women. In March of 2004, after Archer was organizationally
transferred to report to Condon, the Complainant went to Cooper on behalf of
Bobbi Bischke to file a complaint against Archer. The Complainant, in filing
this complaint, asserted that Archerís conduct could pose a threat of legal
liability for the Respondent. The Complainant had made
Franklin
aware of the concerns involving Archerís management at one of the
Complainantís first meetings with
Franklin
in January of 2004.

Cooper
transferred the complaint to Marcia Barron for immediate investigation. Barron
found grounds to take action with respect to the complaint against Archer.

It fell
to Condon as Archerís supervisor to determine whether Archer should be
retained or terminated. Condon, in consultation with others, took steps to
preserve Archerís employment by establishing a series of requirements
including apologies to affected staff, monitoring of his conduct, and evaluation
and training by a third party consultant.

Archerís
conduct, as reported by the Complainant, could have presented legal liability
for the Respondent. Nothing in this record indicates that the conduct in which
Complainant was supposed to have engaged rose anywhere near that level. Despite
the more serious potential consequences for the Respondent from Archerís
conduct, Archer was given what seems to be more solicitous treatment.

While
Archer undoubtedly provided important services to the Respondent, nothing in the
record suggests that his position was as important to the success of the
Respondent as was the Complainantís position. The Complainant had been assured
of his future with the Respondent and his value to Mica and McBride. Despite
Archerís lower status relative to that of the Complainant, Archer was retained
and given every opportunity to ďrehabilitateĒ himself while the Complainant
was summarily terminated.

One
might also compare the treatment of
Franklin
to that of the Complainant.
Franklin
was accused of conduct that violated both law and Respondentís policy. He was
spoken to by Cooper, Mica and McBride and made to apologize to staff. That was
sufficient redress of what could have been a serious problem for the Respondent.

On the
other hand, the Complainant was engaged in conduct that was not violative of any
law and does not appear to violate any policy of the Respondent. He was not
given any corrective action or plan. He was simply terminated.

The Respondent
contends that the Complainant is not similarly situated to Archer and Franklin.
If not similarly situated to, the seriousness of his treatment cannot be
properly compared with that of Archer and Franklin. In making this argument, the
Respondent seeks to create a niche exclusive to the Complainant.

The Respondent
contends that a manager at the level of the Complainant can be treated more
harshly than a manager of a lower level such as Archer. Generally speaking, the
Hearing Examiner can accept this position. However, when one compares Archerís
treatment with that of the Complainant, it must be remembered that Archer was
accused of conduct that was arguably illegal and could subject the Respondent to
legal liability. On the other hand, the Complainantís conduct was never framed
as violating the Respondentís policy or creating any form of liability for the
Respondent. No one testified that they observed the Complainant do anything
ďwrong.Ē (See testimony of Millar and Cooper.)

Additionally,
Archer was not considered to be a ďrising starĒ in the corporation. That the
Complainant who was destined to ďhave it allĒ received more summary and
harsher treatment is illustrative of how the Respondent viewed the
Complainantís actions after reporting
Franklin
.

The argument that
as a higher level manager, the Complainant was subject to a higher level of
scrutiny, is weakened by the fact that Franklin, a yet higher level manager, was
also treated more favorably than the Complainant.
Franklin
ís conduct again arguably created a potential legal liability for the
Respondent. He was given an oral reprimand and made to publicly apologize. This
seems significantly less onerous than the Complainantís summary termination.
The Complainant was not reprimanded and was not made to apologize to
Franklin
.

With the
Complainant firmly placed between Archer and Franklin in the management
hierarchy, it seems that the Respondentís arguments about comparison are
blunted. It would seem that one should be able to compare him to either or both
Archer and Franklin, both of whom received less harsh treatment for what were
potentially more serious offenses than ruffling feathers.

The Respondent
also contends, in response to an argument of the Complainant, that the
Complainantís abrupt termination was not unusual. The Respondent points to
three other instances in which Mica terminated high level managers without
subjecting them to progressive discipline. These included: Mary Meixelsperger,
the Respondentís Chief Financial Officer; H. T. Johnson, a COO; and George
Towle, another manager.

The problem with Respondentís argument is
that it contends that Mica was not the decision-maker with respect to the
Complainantís termination. It argues that McBride was the decision-maker or
gatekeeper. If Mica was not the decision-maker, then how he acted with respect
to three other employees is irrelevant.

To the extent
that Mica was, at least, a part of the decision-making process with respect to
the Complainantís termination, the other incidents might be generally
relevant, but are distinguishable from the present case. First, with the
exception of the incident involving Meixelsperger, the incidents are remote in
time. The first two incidents appear to have taken place several years before
the incidents that form the basis of this complaint. Second, each of the earlier
incidents involve a single extreme situation that demonstrated a direct
challenge to Micaís authority, i.e., use of profane language with staff
immediately after having been warned by Mica or providing the Board of Directors
with a different financial package/projection after having agreed to another
with Mica.

In the present
case, there is no evidence that the Complainant challenged Micaís authority in
any way, much less in the type of direct manner of these other individuals. The
Respondent does not claim that the Complainant made any such challenge, but
rather engaged in a lengthy period of conduct that worked to the detriment of
the Respondentís general operation. The Respondentís argument simply does
not demonstrate that the Complainant was deserving of the treatment he received,
especially given his position and history with the Respondent.

Another
general concern about the Respondentís contention that it terminated the
Complainant for not being a ďteam playerĒ is the Respondentís admission
that there were no problems with the Complainantís production and that his
conduct did not violate any policy of the Respondent. As Millar noted, in 2004,
the Respondent was having a record year economically. It seems unlikely to the
Hearing Examiner that if the Complainant were being as disruptive as claimed by
the Respondent, then the Respondent would not have been able to meet or maintain
such advances. The record indicates that the Complainant was responsible for the
largest number of employees and products for the Respondent. If the Complainant
were unable to work successfully with others such as Condon, Millar,
Franklin
, and many others, it stands to reason that production, income and profitability
would have suffered. However, the Respondent acknowledges that the Complainant
had done nothing to reduce the Respondentís effectiveness.

The
single most obvious method in which the Complainant might have demonstrated
himself not to be a team player was his willingness to report Archer and
Franklin for conduct that may well have violated the ordinance and other laws.
Given the Complainantís opposition to
Franklin
ís statements, it should not be surprising in the least that the Complainant
might believe himself to have been a better selection as COO, and to be unhappy
about reporting to someone whom he had reported for the use of racist, sexist
and homophobic language. However, despite these understandable feelings, the
Complainant continued to work for the good of the Respondent. He engendered deep
loyalty in those he supervised, such as Hayes, Loether, Tomalin, and Lovelace,
and was able to help the Respondent achieve new levels of profitability.

The
Respondentís reliance on the testimony of Loether, Tomalin and Decker is
unfortunate. While all three testified about how the Complainantís inability
to come into line with
Franklin
as the COO adversely affected them, their credibility was negated by the
revelations on cross-examination of their statements of loyalty and respect for
the Complainant sent to the Complainant at the time of his termination. The fact
that Loether and Tomalin both remain employees of the Respondent and were
directly advantaged by the Complainantís departure does little to boost their
credibility in the eyes of the Hearing Examiner. Loether, in particular seemed
to be testifying to further her own personal agenda and was too flippantly
willing to dismiss her earlier statements that directly contradicted her
testimony on direct examination. Tomalin was more sophisticated in her
testimony, but failed to counter the effect of her statements praising the
Complainant by her later conversion to the side of her current employer.

Given
this record, who can blame Loether and Tomalin for following the Respondentís
line? The Respondent, in the case of the Complainant, demonstrated little
compunction about terminating an employee who had apparently opposed the
Respondentís sense of loyalty.

Another
problem with the testimony of Loether, Tomalin and Decker is that clearly none
of the material discussed by them was a basis for any decision made by McBride,
Mica or
Franklin
. At best, their testimony represents an after-the-fact attempt to justify the
Respondentís dismissal of the Complainant. As such, the testimony is
inherently unreliable. Given the fact that all three of these individuals have
benefited directly from the Complainantís termination, their testimony about
what a terrible manager the Complainant was during 2004 is highly suspect.

What
rings more true from the testimony of these witnesses are the following
examples: Tomalinís concerns about an increasingly prevalent ďgood olí
boysĒ network that seemed to be operating since Franklinís assumption of the
position of COO; Loetherís concern over an email from Franklin that was
suggestive and inappropriate after Loether had performed well; Deckerís
reporting to the Complainant of comments of a sexual nature made by Franklin
both before and after the Complainantís termination; and the praise by all
three about the Complainantís skills, abilities and importance to each of them
as a mentor and manager made prior and contemporaneously to the Complainantís
termination.

Condon
and Millar both found themselves in camps opposing the Complainant. Millar long
favored an increased role for state credit union leagues because of his
background coming from such an organization. While he did not demonstrate the
deep personal resentment of the Complainant that Condon did, Millar nevertheless
seemed to be very satisfied that a position once held by the Complainant was no
longer in favor with the COO and others. That Condon and Franklin were close,
both business allies and personal friends, cannot be doubted. Vicki Joyal
testified that Franklin and Condon were tied at the hip by which she meant that
they frequently spoke together, lunched together and played golf together. To
the extent that Condon might be able to help
Franklin
by damaging the Complainant, the Hearing Examiner has little doubt that Condon
would jump at the chance.

McBride
was perhaps the most interesting witness of the entire hearing. As Micaís
ďright hand man,Ē he has a long and distinguished history of serving Mica.
This service extended to a point well before Micaís becoming the CEO of the
Respondent. This record of service makes it hard to see McBrideís testimony in
a light other than one intended to further Micaís and the Respondentís
interests without reservation.

Despite
the clear link between Mica and McBride, McBride was a genuinely likeable
witness. The Hearing Examiner believes that McBride has put a spin or gloss to
his memory and testimony to fit what he believes best furthers the
Respondentís position. In this regard, the Hearing Examiner can accept that
McBride might see the Complainantís statements to Evers or McMorris as not
being those of a team player. The Hearing Examiner cannot accept, however, that
McBride can separate the fact of the statements from their content. Thus, the
Hearing Examiner believes that McBride sees the Complainantís protected
exercise of rights under the ordinance to be evidence of the Complainantís
unwillingness to accept
Franklin
. That the Complainant would continue to be upset by Franklinís initial
statements and those that came in the summer of 2004, and continue to complain
about them to those in a position to affect the conduct was likely seen by
McBride as disloyalty of a type that could damage the Respondent. Addressing
that threat, despite the protected nature of the underlying conduct, the Hearing
Examiner believes is what brings us to this point.

McBrideís
testimony that it was not the complaints about
Franklin
ís conduct, but rather his recommendation to discharge Miller was made only on
the basis of his view that the Complainant could not be a successful member of
the management team simply does not ring true. As noted previously, McBride knew
of the success of the Respondent in 2004. He had, a few short months before,
held the belief that the Complainant might well be the next COO. For McBride not
to have attempted some form of reconciliation between Franklin and the
Complainant strains the Hearing Examinerís credulity.

One
specific allegation against the Complainant must be addressed. At the AACUL
meetings in the
Bahamas
, McBride testified that Archer, during a golf game, told McBride that the
Complainant had advised Archer to sue the Respondent over his treatment. Archer
further stated that the Complainant offered to put Archer in touch with his (the
Complainantís) lawyer.

McBride
testified that he was very upset by Archerís statement. There is no indication
that McBride did anything to verify such a frankly remarkable allegation against
a Senior Vice President. There is no indication that McBride ever asked the
Complainant about it or took any other steps to corroborate Archerís claim.

In
testifying about the statement at hearing, Archer produced notes that he asserts
verify the statement and place it in context. The Hearing Examiner regards
Archer with little credibility. Archer nearly lost his job, had to make a public
apology, and experienced other serious employment limitations as a result of the
Complainantís complaint against Archer in March of 2004. Given Archerís
history as an arrogant and bullying manager, the Hearing Examiner finds it
entirely likely that Archer created the notes introduced at hearing and made his
statement to McBride solely with the intent of sabotaging the Complainantís
relationship.

While
the record does not conclusively demonstrate that Archer and Franklin and Condon
are all personal friends, the fact that
Franklin
went to Archer at the end of May, 2004 to warn Archer not to trust the
Complainant indicates some sort of relationship beyond employment. Accepting
that there was some extra relationship between Condon, Archer and Franklin, it
is entirely credible that Archer saw an opportunity to damage the Complainant
with McBride and he took it. (See testimony of Vicki Joyal.)

That
McBride did not make Archerís alleged statement the center of the rationale to
terminate the Complainant is an indication that he did not give the statement
much, if any credibility himself. It is not credible to the Hearing Examiner
that McBride would take such a statement at face value without taking steps to
investigate what, if anything, lay behind it.

McBrideís
testimony represents the cornerstone of the Respondentís defense. The
Respondent vociferously contends that McBride was the primary decision-maker and
that as of early August, 2004, McBride did not know of the Complainantís
protected activity with respect to
Franklin
. McBrideís own testimony belies such a claim. Additionally, given McBrideís
role and his relationship with Mica, such a contention is not credible.

McBride
stated that he had known Mica for over 30 years. During much of that time
McBride had functioned as Micaís right hand man. McBride asserted that he did
not know about Micaís conversation with the Complainant on April 29, 2004
concerning
Franklin
ís statements. It is inconceivable to the Hearing Examiner that Mica would not
have told McBride about the allegation against the person whom they had hand
picked to become COO, and that the individual making the charge against Franklin
was the Complainant. When Mica tasked McBride to speak to
Franklin
to reinforce Micaís own reprimand, it is logical to expect that Mica would
tell McBride the source of the complaint so that in working with
Franklin
, McBride would have all necessary information.

According
to his testimony, on June 28, 2004, McBride wrote to Mica and
Franklin
an email critical of the Complainant. He stated that he did not understand the
reference therein to ďcultureĒ to refer to the Complainantís complaint of
sexist, racist, and homophobic conduct by
Franklin
. This position cannot be credited by the Hearing Examiner. This testimony
includes McBrideís admission that he must have learned of the Complainantís
complaint from Mica. Also, in reference to the email on June 28, 2004, McBride
stated that he thought the complaint had been previously addressed and
therefore, the reference to ďcultureĒ must not have been to the
Complainantís complaint.

For
McBride not to have known that it was the Complainant who complained against
Franklin
would mean that he was the only one of the active participants in the events of
2004 who did not know. Testimony is clear that Mica,
Franklin
, Condon and Archer all knew. The Hearing Examiner cannot believe that not one
person from this list of individuals with whom McBride interacted regularly or
during this critical period informed him that it was the Complainant who
complained against
Franklin
.

The
Respondent spends much time in its brief attempting to create the impression of
significant problems involving the Complainant over Franklinís hire in the
period prior to the Complainantís discussion with Mica on April 29, 2004.
These efforts represent dissembling and out right improper characterization.

The
Respondentís brief is written in such a way as to indicate that the
Complainant told Tomalin, Loether and Decker on numerous occasions of the
Complainantís belief that
Franklin
was racist, sexist, or chauvinistic. The testimony is more limited than that.
The witnesses did testify that the Complainant discussed with them his views as
to some of
Franklin
ís shortcomings or problems. However, this appears to have been a single
incident or, at least, limited in time to the end of 2003 or very beginning of
2004. Similarly, the Respondent uses an incident in February to create the
impression that the Complainant was attempting to undermine
Franklin
ís authority.
Franklin
was discussing with Condon, in Condonís office, certain reorganizations that
he believed might be appropriate. Specifically,
Franklin
wished to move the Publications Unit from Complainantís supervision to
Condon. During the discussion,
Franklin
saw the Complainant and asked him to join the discussion. The circumstances
certainly could be seen as an effort of Condon and Franklin to make decisions
without the Complainant.

Though
the Complainant was ďemotionalĒ or ďpassionateĒ about the proposal, he
convinced
Franklin
that it made more sense to transfer Executive Services to Condonís
responsibility than to shift Publications. In fact,
Franklin
, along with the eventual approval of Mica and McBride, not only did as the
Complainant suggested but praised Complainant for his suggestion and
cooperation.

It seems
to the Hearing Examiner that a well paid member of senior management should be
expected to provide input into decisions like this. Respondent argues that even
though
Franklin
adopted the recommendation of the Complainant, the Complainantís advocacy of
a structure different from that initially proposed by
Franklin
should be seen as divisive. The Hearing Examiner, and apparently Franklin, see
things differently.

The
Respondent asserts that
Franklin
did not name the Complainant as his successor in his (
Franklin
ís) April 22, 2004 Succession Plan he submitted to Mica. The Respondent argues
that
Franklin
ís omission in this regard reflects concerns
Franklin
had about the Complainantís ability to occupy the COO position one day.

It is
not surprising that in this document,
Franklin
did not see the Complainant as being ready to succeed him in the position of
COO. Had he pronounced the Complainant immediately ready to replace him, it
would have called into question Mica and McBrideís judgment in naming
Franklin
to be COO just four months earlier. The fact that
Franklin
ís Succession Plan tracks almost identically the language of Mica and McBride
in choosing
Franklin
over the Complainant cannot be coincidence. The Hearing Examiner does not find
that
Franklin
ís Succession Plan can be seen as any indication that the Complainant was
attempting to undermine
Franklin
ís authority.

The
Respondent contends that on four separate occasions, the Complainant told
someone that either he was trying to get fired or he should be fired. Two of
these occasions involved Wes Millar and the other two McBride. By arguing that
on four separate occasions such statements were made, the Respondent is guilty
of overemphasizing a more limited series of events. This is a technique employed
regularly in Respondentís briefs.

The
circumstances under which the Complainant allegedly told Millar that he was
trying to get fired and that he hadnít been successful yet are much more
ambiguous than the testimony of Millar would lead one to believe. The effect of
Millarís testimony that he couldnít determine if the Complainant was joking
is limited by Millarís clear professional differences with the Complainant.
Despite Millarís testimony, he was not able to point to any incident or series
of incidents that showed the Complainant to be opposing the new direction of the
Respondent or any incident in which the Complainant did something wrong. Millar
testified that the Complainant told him that the Complainant found it difficult
to follow the new direction. However, there was no testimony that he wasnít
following that new direction, although it was difficult for him to do so.

Millarís
testimony about the Complainant appearing to be unhappy and disconnected in
staff meetings does not necessarily lead to the conclusion that the Complainant
was seeking to be fired. Equally, Millarís testimony does not really indicate
that the Complainantís unhappiness translated into less effective staff or
Executive Management Team meetings. Millar never testified that the Complainant
was causing difficulties or keeping the company from achieving its goals. In
fact, Millar testified that the Respondent was enjoying one of its best years
ever.

The
alleged statements to McBride are harder to judge. First, McBrideís own
testimony on many items varied wildly depending on what needed to be said and
who was doing the questioning. Given his lack of consistency, it is difficult to
know whether to credit the statements he attributes to the Complainant with much
in the way of veracity. The Hearing Examiner can certainly understand how
someone who is frustrated with a decision might tell a supervisor that he should
be fired without really meaning it or challenging that manager to actually fire
the employee. It is difficult to judge the degree of seriousness of such a
statement without more context and background than is present in this record.

Certainly,
the Respondent does not seem to be arguing that it simply gave the Complainant
that which he wanted all along. The Respondentís case is premised on the
notion that the Complainant needed to be terminated for the good of the
organization resulting from his inability to either accept that he didnít
reach the final interviews for COO or accept the new directions in which
Franklin
was taking the Respondent at Micaís instance.

Accepting
for the moment that the Complainant did tell McBride in the Bahamas that he (the
Complainant) didnít know if he could work with Franklin as McBride wished and
that he then should be fired, it seems to the Hearing Examiner that this
statement is much like that reported by Millar that the Complainant was having
great difficulty accepting the new direction or working with Franklin. In both
instances, the Hearing Examiner understands them to be statements of difficulty,
but not opposition. It does not appear to the Hearing Examiner that the
Complainantís statements, to the extent they actually occurred, can or should
be read as an open invitation to terminate his employment.

As with
its contention that the Complainant attempted to ďpoison the wellĒ against
Franklin with his subordinates before Franklin even began, the Respondent
overstates its proof with respect to the period from May 1, 2004 up to the
beginning of the meetings in the Bahamas. Except for the allegations concerning
the Complainantís statements to Evers and Archerís statement to McBride, the
record is essentially silent about conduct on the part of the Complainant in
July of 2004.

With the
finding that the Complainant had done little or nothing to undermine
Franklinís authority through April, 2004, that really leaves the eight-week
period of May and June, 2004 for the Complainant to have been so disruptive that
his termination was justified some three months later. This record does not
support the Respondentís position.

There is
nothing in the record, upon which the Hearing Examiner could rely to find that
in May and June of 2004 that the Complainant was engaged in a campaign to oust
Franklin and replace him. Equally, there is little to suggest that the
Complainant was opposing, actively or passively, the new direction in which
Franklin
was taking the Respondent. The Complainant may have disagreed with that
direction but the Hearing Examiner would expect someone in the Complainantís
position to make his or her concerns known. This critique of policies and
direction is essential to sound policy development.

Additionally,
much of the ďnegativeĒ comments to which the Respondent points in the record
is directed not at Franklin but other managers such as Condon. Certainly the
Respondent is not suggesting that criticism of another vice president or his or
her decisions represents conduct intended to undermine
Franklin
. If that were the case, Condon, Archer or Millar would be at least as guilty as
the Complainant.

What is
most evident to the Hearing Examiner is that the period of time in which things
seem to have become critical for the Complainant in the eyes of McBride and Mica
is the period immediately following the Complainantís report of
Franklin
ís misconduct to Mica. It is also at or shortly after the time when the
Complainantís identity was tied to the reports sent to Mica. It is at this
time that Franklin, Condon and McBride became most focused on the Complainant.
This is during the period of time in which the Respondent was making more money
than it had before.

The
Respondent asserts that it was not only Condon, Franklin and McBride who had
problems with the Complainant during this period. The Respondent points to
Loether, Tomalin and Decker. However, as noted before, there is no evidence in
the record that any alleged concern of these employees played any role in the
Complainantís termination. Decker specifically, during this period, seems to
have been a strong supporter of the Complainant, his conversion not coming until
after the Complainantís termination.

The
Respondent places much weight on the investigation Judy Cooper conducted at the
request of McBride in August, 2004. For several reasons, the Hearing Examiner
finds this investigation to be little more than window dressing for a decision
already reached.

As noted
earlier, Condon and the Complainant had long been competitors and did not
particularly like each other. In June or July, Condon was reporting to employees
that the Complainant had done something severe enough to get himself fired. At
the end of July, 2004, he authored a statement in which he indicated that either
the Complainant had to go or he (Condon) would have to consider leaving. Given
the history between the Complainant and Condon, there is little surprise that
Condon would not have been supportive of the Complainantís retention.

Equally,
Evers is likely to have held little love for the Complainant. When she did not
forward the Complainantís name for an interview in late 2003, the Complainant
was extremely critical of Evers and the job that she had done. Also, his
statements to Evers at the
Cincinnati
airport caused her to embarrass herself in her subsequent conversation with
McBride. Also, to support the Complainant at that late date would call into
question Eversís earlier judgment in failing to forward the Complainantís
name for consideration.

The
testimony of Wes Millar is quite interesting and somewhat deceptive. Millarís
views were supposedly credited highly by Cooper and, hence, McBride because of
his even disposition and ability to get along well with many different people.
However, the Hearing Examiner finds that much of Millarís testimony is based
solely on conjecture and assumption that is not necessarily borne out in the
record.

Millar
was one of the individuals interviewed in August, 2004 by Cooper at the behest
of McBride when McBride was tasked to determine if the Complainantís
employment was ďsalvageable.Ē Millarís conclusion was that the Complainant
was probably not salvageable. He reached this determination, according to his
testimony, on the basis of two brief conversations with the Complainant and upon
Millarís observations of the Complainantís demeanor in several staff
meetings. These conclusions lack any realistic basis and represent the rankest
of speculation on the part of Millar.

Millar
testified that in June or early July of 2004, the Complainant stopped by
Millarís office for a meeting. In response to an inquiry about how the
Complainant was doing, Millar states that the Complainant told him that he (the
Complainant) was trying to get fired, but it hadnít worked yet. Millar
believed that the Complainant had not said this in jest, but is unable to offer
any information that might have led to such a remarkable statement. Other than
this statement, the meeting was apparently unmemorable.

Several
weeks later, Millar and the Complainant, as well as several other employees of
the Respondent, were traveling to the summer conferences held in 2004 in the
Bahamas
. This is the same trip on which the Complainant told Evers of Franklinís
discriminatory statements and the Complainantís displeasure with the
situation. Given the last contact between the Complainant and Millar, Millar
asked how things were going. The Complainant told Millar that he (the
Complainant) was still there. Millar observed that the Complainant was in a
ďbad mood.Ē

Millar
also testified that he knew that the Complainant had not been in favor of close
business relations with state credit union leagues. This was an approach favored
by Mica and
Franklin
. From the Complainantís past opposition to state credit union leagues, Millar
draws the conclusion that the Complainant would not be able to accept the
Respondentís new direction under
Franklin
, a direction that would favor Millar.

Millar
testified that he observed that the Complainant was less animated and connected
in staff meetings and felt this had to be because of the Complainantís failure
to support a new reality involving state credit union leagues. However, Millar
did not testify that he heard the Complainant rebuked or criticized in any way.
The problem with Millarís testimony is that while it was apparently sincerely
given, it reflects little in the way of understanding of what was truly
happening.

First,
Millar testified that in the early summer of 2004, the Respondent was enjoying
the most profitable and productive period in his memory. It seems unlikely to
the Hearing Examiner that such business advances could have come about with one
of the Respondentís primary Senior Vice Presidents actively working against
the interests of the company. Millar suggests that the Complainant was less than
enthusiastic about Micaís and
Franklin
ís business vision, but fails to point to any evidence that the Complainant
was doing anything to ďsabotageĒ such a vision. In fact, Millar testified
that he had not seen the Complainant do anything inappropriate at all.

Second,
Millarís observations with respect to the Complainantís statements about
trying to be fired seem hollow. If a colleague of the Complainantís stature
told the Hearing Examiner that he was trying to get himself fired, the Hearing
Examiner would certainly want to know more about such a statement, if the
Hearing Examiner did not take it as a joke. Millar only states that he did not
understand it to be in jest. Given the record as a whole, it is impossible for
Millar to have had any understanding of the context in which such a statement
was made. For example, the Hearing Examiner could easily understand such a
statement to be an ironic comment on the Complainantís complaints against
Franklin
ís conduct. Millar professed no knowledge of this situation, however. He did
not explain why it was not a jest other than to point to the Complainantís
past opposition to a business model including state credit union leagues.

Third,
Millar, in his testimony, equates the Complainantís ďbad moodĒ during the
trip to the
Bahamas
in late July, 2004 with dissatisfaction over
Franklin
ís business decisions. This conclusion is reached despite nothing in the
conversation about business direction. Millar apparently does not credit the
delays and reassignments of airplanes to be a sufficient reason for the
Complainantís ďbad mood.Ē Millar does not nor could not attribute the
Complainantís ďbad moodĒ to the Complainantís dissatisfaction with
Franklin
ís personal conduct rather than an opposition to business direction. Further,
Millar had no knowledge of what had transpired with the Complainant prior to his
conversation. He did not know if there might be a personal or family reason for
the Complainantís ďbad mood.Ē

Millar
tries to convey that he and the Complainant were friendly colleagues with a
substantial history together. However, the Hearing Examiner hears an
undercurrent of satisfaction on the part of Millar in the Complainantís
termination. It is clear that based upon his background and his testimony that
Millar had long favored a more inclusive business approach involving state
credit union leagues. It is a reflection of Millarís own employment history
that he would hold this belief. He also seemed to have begrudged the
Complainantís success in following a different business model that he (the
Complainant) and the company as a whole were following as the result of an
analysis and study paid for by the Respondent in 2000. That the Complainant was
able to embrace and prosper under this business model speaks only to his own
drive and business skills. It is interesting to note that despite Millarís
belief that the Respondent was not giving adequate attention to opportunities
with state credit union leagues, Millar was not fired or isolated in any manner.

Given
this analysis of Millarís testimony and earlier statements, the Hearing
Examiner cannot credit Cooperís or McBrideís reliance on Millar as
reasonable. That Cooper found Millar to be inherently credible is undercut by
the obvious shortcomings in Millarís statements. For Cooper and McBride to
utilize this collection of suspect statements to support the Complainantís
discharge calls into question their veracity and judgment.

The Respondent
has consistently asserted that the Complainantís effort to utilize the
Complainantís opposition to Dean Archerís conduct towards women employees is
irrelevant to the claim of retaliation. The Hearing Examiner, after hearing the
entire record, agrees that Archerís conduct does not provide a basis for
liability under this complaint.

Franklin knew of the
Complainantís concerns about Archer and the Complainantís part in bringing
Archerís negative conduct to light. There is nothing in the record, however,
to tie that knowledge or information to McBride or Mica, both of whom seemed to
have parts in the decision to terminate the Complainant.

Despite the lack
of evidence connecting the Complainantís opposition to Archerís conduct with
the Complainantís termination, much of the testimony is illustrative on issues
of credibility and the negative atmosphere in which the Complainant was working
at the end, an atmosphere not solely of his own making.

SUMMARY

In
summary, with respect to liability, the Hearing Examiner finds that the
Complainantís continuing objections to
Franklin
ís sexist, racist and homophobic comments played a motivating role in his
termination. Although the Complainant was disappointed with the decision to hire
Franklin
as COO, a disappointment he shared with others, he worked in the first three or
four months of 2004 to be the team player that Mica and McBride expected while
trying to assure that his views and experience were taken into account in
shaping the future of the Respondent. When
Franklin
ís use of sexist, racist and homophobic language became more than he could
accept, the Complainant took his concerns to Cooper and included them in his
Succession Plan. Mica spoke with the Complainant about his concerns and learned
of
Franklin
ís inappropriate language.

Mica
spoke with
Franklin
and directed McBride to speak with
Franklin
in
Georgia
about the degree of seriousness with which Mica took
Franklin
ís indiscretions. It is likely that McBride knew at this point that the
Complainant was the source of the complaints.

As
Franklin and others became aware that the Complainant was the source of the
complaints to Mica, they began to be increasingly critical of the Complainant
and his lack of support for
Franklin
.

While
the Complainant was the recipient of this new level of criticism, he continued
to do his job and to be concerned about
Franklin
ís continued use of inappropriate language. Even after
Franklin
had apologized to Respondentís staff in early June, he reportedly made
inappropriate sexual remarks at a company sponsored ropes course designed to
promote diversity and respect among the workforce.

With
these incidents fairly fresh, the Complainant and others attended 10 days of
meeting in the
Bahamas
. On the way to the meetings, the Complainant told Evers of
Franklin
ís comments and that
Franklin
represented a disaster for the Respondent. Evers reported elements of her
conversation with the Complainant to McBride and Mica.

McBride,
upon returning to the office after the
Bahamas
meetings, recommended to Mica that the Complainant be terminated. Mica felt
that an additional investigation should be done to make sure that termination
was warranted. McBride asked Cooper to question three individuals who held no
love for the Complainant about the Complainantís employment. Though Cooper,
echoing McBrideís own words, reported that there was ďno smoking gunĒ
against the Complainant, she agreed he probably should be terminated. After
consulting with
Franklin
, the individual against whom the Complainant had complained, McBride and Mica
with the ďacquiescenceĒ of
Franklin
terminated the Complainant almost a month later.

The
Respondentís assertions that McBride didnít know that the Complainant had
complained are simply not credible given the level of trust and communication
between Mica and McBride. Also, the flow of information between and among
Franklin
, Condon, Mica and McBride make it highly unlikely that McBride remained
ignorant of the source of the complaints against
Franklin
.

The
Respondent experienced unprecedented growth and profitability during 2004.
During this economic boom, the Respondent asks the Hearing Examiner to accept
that the Complainant was such a disruptive and contentious influence that he had
to be terminated for the good of the Respondent. On this record, the main aspect
in which the Complainant was disruptive was that he complained about
Franklin
ís conduct and language.

In
reaching this conclusion, the Hearing Examiner does not believe that the
Complainant was an angel. It is difficult for the Hearing Examiner to understand
why the Complainant did not take appropriate action with respect to Archerís
conduct months before he went to Cooper and complained on behalf of Bischke. The
Complainantís efforts to gain an additional interview for COO in 2003 appear
to have been beyond those that one would expect from an employee. The
Complainant may not have always been a ďray of sunshineĒ in staff meetings.
However, these items fail to draw a convincing picture of someone who was
determined to stand in Franklinís way at all turns and costs.

It is
true that the Complainant might have chosen a less confrontational route to show
his displeasure with
Franklin
ís comments and language. Perhaps some discussion occurred before the
Complainant went to Cooper. If so, the record is silent with respect to this.
Despite the existence of other roads to satisfaction, the Complainant was not
compelled to follow those routes. That he chose to complain and to continue to
complain to the powers that be at the Respondent is not something for which the
Complainant can be legally faulted.

The
Respondent appears to be a workplace with an unusually high level of internal
fighting and personality conflicts. It clearly is a work place that rewards
loyalty and seems to punish those who are no longer in favor. Much of the
testimony of employees presented by the Respondent is motivated by this culture.
That Mica, perhaps, wished to eliminate this aspect of the Respondentís
culture is laudable; however, Micaís efforts do not appear to have extended to
this litigation.

Given
that the Hearing Examiner applies the ďin partĒ test instead of that of
ďsubstantial evidence,Ē this record supports a finding that the Respondent
was motivated to terminate the Complainant in part because of his exercise of
his right to oppose a discriminatory practice on the part of
Franklin
. The Respondent falls short of convincing the Hearing Examiner that McBride did
not know of the Complainantís objections or that the Complainantís conduct
required his termination.

DAMAGES

Having found that the Respondent terminated the Complainant, at least in part,
because of his exercise of rights protected by the ordinance, the Hearing
Examiner now turns to the issue of damages. When there is a finding of
discrimination, the Hearing Examiner must recommend an order that makes the
Complainant whole. To be made whole, the Complainant must be placed in the same
position he would have been had the act of discrimination or retaliation not
occurred. In order for the Complainant to be placed in the same position he
would have been had the Respondent not terminated him, the Complainant needs to
have the income he lost replaced along with the benefits to which he would have
been entitled from the date of retaliation to the date of this decision. The
ďback payĒ component must be adjusted by pre-judgment interest. Pre-judgment
interest takes into account the lost opportunity cost of the Complainantís
lost income. The Complainant should be entitled to reinstatement to his position
with the Respondent to prevent future economic losses unless it is impractical
to do so. If it is impractical for the Complainant to return to employment with
the Respondent, the Complainant should receive an award of front pay for the
period of time necessary to gain employment sufficient to replace his lost wages
with the Respondent.

Finally, a
prevailing Complainant is entitled to an award of his or her costs and fees
incurred in bringing a complaint before the Commission including a reasonable
attorneyís fee. Courts have long held that to further the purposes of social
legislation such as the ordinance, it must encourage individuals to enforce
their rights by bringing complaints of discrimination. They will not be
encouraged to do so if they are saddled with the expense of paying their own
attorney along with the costs of litigation. Watkins v. LIRC, 117
Wis.
2d 753, 345 N.W. 2d 482 (1984).

In determining
damages for retaliation, the Hearing Examiner is faced with a threshold
question. In some circumstances, the courts at the federal level have applied
what is known as the ďmixed motiveĒ analysis. Price Waterhouse v.
Hopkins, 490
U.S.
228 (1989). In this analysis, if discrimination or retaliation is found, the
trier of fact may also determine whether the Respondent has proven that in
addition to the impermissible factor employed by the Respondent, the Respondent
also had a legitimate, non-discriminatory factor that served as the basis of its
action. In other words, did the Respondent, in addition to its retaliatory
motive for terminating the Complainant, have a legitimate, non-discriminatory
reason for terminating his employment? In the mixed motive analysis, the fact of
the legitimate, non-discriminatory motive does not relieve the Respondent of
culpability for its termination of the Complainant, but may act to reduce the
damages due as a result of the act of discrimination or retaliation.

In
Wisconsin
, the courts have not addressed the mixed motive test in the context of a
retaliation claim, but have done so in a discrimination complaint. Hoell v.
LIRC, 186
Wis.
2d 603, 522 N.W.2d 234 (Ct. App. 1994). In adopting the mixed motive analysis,
the appellate court indicated that when the Respondent was solely motivated by
an impermissible reason in acting against an employee, the employee is entitled
to the full range of damages available. Where the Respondent acts with
permissible and impermissible motivation, the Complainant may be entitled to the
full range of damages if the Respondent would not have taken the action in
question absent the impermissible factor. Finally, if the Respondent
demonstrates that it would have terminated the Complainant because of the
permissible factor regardless of the impermissible factor, the Complainant would
be entitled to only a cease and desist order and attorneyís fees. Id.
at 609-10.

The Commission
has not clearly committed to the use of mixed motive analysis. In part, this is
because the Commission has presumed that the factors considered in mixed motive
analysis are to some extent subsumed in the ďin partĒ analysis for purposes
of determining liability. Morgan v. Hazelton Labs, MEOC Case No. 21005
(Ex. Dec. 04/02/93).

It is not
presently required for the Hearing Examiner to determine whether the mixed
motive analysis is appropriate or not. On this record, the Hearing Examiner
cannot determine that the Respondent would have terminated the Complainant
absent its retaliatory motive. On this record, things changed so dramatically
for the Complainant after he reported
Franklin
ís use of discriminatory language that it is difficult to separate what may
have been the Complainantís discontent with the proposed changes in corporate
direction from unhappiness over
Franklin
ís language and the arguably publicly uncertain response to the complaint.

The Complainant
may certainly have left the employment of the Respondent on his own. He had
considered other positions while still employed with the Respondent. He was not
happy as much of the testimony in this matter tends to show. However, Micaís
statement that until the day he left, the Complainant was still his choice to
lead the Respondent after the person they hired does not indicate the likelihood
of termination. Even McBride, whose testimony tended to change as frequently as
a wind vane in a frontal boundary, stated that if Franklin had opposed the
Complainantís termination, he (McBride) and Mica would have probably talked
things out and permitted the Complainant to stay. These are not statements
showing that the Complainant would have been terminated absent the retaliatory
motive. Given the failure to terminate Archer for a potentially more serious
offense, this record falls substantially short of demonstrating that the
Complainant would have been terminated absent the retaliatory motive.

Given this
uncertainty about the Complainantís fate absent the retaliatory motive, the
question of mixed motive need not be addressed. However, if mixed motive
analysis is appropriate, the fact that the Respondent fails in its burden to
demonstrate that the Complainant would likely have been terminated even absent
the retaliation, the full range of damages would be available to the
Complainant. See Price Waterhouse, 490
U.S.
at 228; Hoell, 186
Wis.
2d at 603.

Turning to the
issue of back pay, the Complainant is entitled to the wages he lost as a result
of the Respondentís act of retaliation. These damages are reduced by the wages
the Complainant actually made or reasonably could have made during the period
for which the damages are calculated. Then, the damages are increased by an
amount of pre-judgment interest to compensate for the loss of use of the wages.
However, the Complainantís wages may be reduced or eliminated if there is
evidence demonstrating by a preponderance of the evidence that the Complainant
failed to take reasonable steps to mitigate his wage loss.

In the context of
these calculations, the Complainantís wage loss not only includes his salary,
benefits and bonuses, but the corresponding increases in these compensation
areas. Such as with other elements of a damages claim, these amounts must be
proven by a preponderance of evidence.

The Respondent
contends that the Complainant is entitled to no wage loss or other damages
because the Respondent asserts that the Complainant has failed to demonstrate
retaliation. In its brief in chief, the Respondent only argues that the
Complainant is not a prevailing party and thus, not entitled to damages.
However, in its reply brief, the Respondent fully addresses the issues regarding
a claim for damages.

The testimony of
what the Complainant was making at the time of his termination was somewhat
disputed. However, the Respondent called Megan Hawkos in an attempt to set that
amount along with the level of benefits the Complainant received. For the period
from September 9, 2004 until the end of that year, the Complainant would have
made approximately $46,000 in wages. This amount would have been adjusted by
benefits in the amount of approximately $9,660 or 21% of the wages. In 2005, the
Complainantís base salary would have been approximately $162,000. This was his
2004 salary increased by an anticipated 6% bonus as per the testimony of Hawkos.
This amount would have been adjusted by benefits in the amount of approximately
$34,000. The Complainantís wages must be offset by the wages he actually
received from other employment. The record reflects that in November of 2004,
the Complainant began a consulting business to assist in offsetting his wage
loss. In 2004, this effort brought in $30,000 worth of income. The record does
not contain information for determining income from the consulting business for
2005 as tax records were not available at the time of hearing.

The
Complainantís base salary would have been increased by an additional 6% bonus
for 2006, but beyond that, the amount of further increases becomes speculative.

Before proceeding
further with these calculations, the Hearing Examiner will turn to the
Respondentís major argument with respect to wage loss damages. The Respondent
contends that the Complainant has failed to take reasonable steps to mitigate
his damages and therefore, is not entitled to any back pay award. The
Complainant asserts that he has acted reasonably to replace his lost wages and
should not be faulted for taking the steps that he has.

The Respondent
makes two primary assertions regarding the Complainantís efforts to replace
his lost income. First, the Respondent claims that the Complainant has not been
sufficiently diligent in seeking employment to warrant an award of damages for
wage loss. Second, the Complainantís calculation of his wage loss is too
speculative to support his claimed damages.

Given the record
as a whole, the Hearing Examiner concludes that the Complainant has taken
reasonable steps to attempt to mitigate his damages stemming from the
Respondentís retaliation. The Complainant has applied, over time, for a number
of positions, locally and elsewhere to replace his lost income. In addition, he
has, while applying for other positions, attempted to open and operate a
consulting business to replace income while he continues to job search. He
further intends, in addition to operating a business and applying for positions,
to undertake a Masterís degree program in
Madison
to better position himself to replace his lost income. Had the Complainant only
pursued a degree program or started his consulting business, the Hearing
Examiner may well have found such to be an inadequate effort. However, in
combination with the number of applications sent by the Complainant for other
positions, the Hearing Examiner finds that the Complainant has undertaken a
reasonable effort to mitigate his damages.

The Respondent
contends that the Complainantís efforts fall short of a reasonable effort and
to a great extent represent a sham. The Respondent finds fault with the
Complainantís organization of and operation of a consulting business, his
return to gain an additional degree and most of all, the number and types of
jobs for which the Complainant applied. The Respondent misses the mark with
these objections.

The Respondent
seeks to hold the Complainant to a higher standard of mitigation than required
by law. The Respondent would have the Complainant spending every waking hour
submitting application to every remotely possible position and doing nothing
else to replace the Complainantís lost income. This is not the standard. As
reported in the cases cited above, the Complainant must make a ďreasonableĒ
effort to replace his lost income. On this record, the Hearing Examiner
concludes that the Complainant has made this reasonable effort.

Both parties, in
an attempt to deal with the mitigation issue, rely upon the testimony of expert
witnesses. The Respondent called Leslie Goldsmith while the Complainant relied
upon Kevin Schutz. To be sure, both experts had additional aspects to their
testimony.

The problem with
expert testimony in this area is that it generally invades the job of the
Hearing Examiner. Whether it is Goldsmith stating that the Complainant did not
do what a reasonable job seeker should have done or Schutz testifying that the
Complainant did all he could, it is up to the Hearing Examiner to determine
whether the Complainantís efforts met the legal standard for a reasonable
attempt to mitigate his damages. (The Hearing Examiner also views Dr. Dennis
Dresangís expert testimony as impermissibly infringing upon the Hearing
Examinerís province as finder of fact and applier of law.)

Goldsmithís
testimony lacked the precision necessary for it to be useful to the Hearing
Examiner in making a determination relating to mitigation. He spoke in
generalities and was unable to identify what it was that would make a particular
position suitable for the Complainant or not.

There was much
testimony about Exhibit 63. This exhibit was a compilation of positions culled
from the Credit Union Times. The exhibit was compiled by Xavier
Santistevan, a paralegal in the employee of counsel for the Respondent.
Santistevan had no particular training in vocational searches and received
direction only from counsel and with his own guesses about the Complainantís
interests or qualifications. The Respondent wished to use this exhibit to
demonstrate the plethora of positions that were available and for which the
Complainant failed to apply. The Hearing Examiner admitted this exhibit to the
extent that there was testimony about its individual entries.

The difficulty
with this kind of exhibit is that it does not really relate back well to the
Complainantís particular circumstance. For instance, Goldsmith testified about
certain entries as being ones for which the Complainant might be qualified.
However, there was no testimony about whether it would be a position in which
the Complainant might be interested or the likelihood of the Complainant
obtaining the position even if he applied for it. Merely saying that it is a
position for which the Complainant might be qualified fails to move the inquiry
out of the range of speculation into relevant testimony.

Santistevan
testified that he included positions in various states either on the
recommendation of counsel or because, the Complainant had, in his own exhibit,
Exhibit 62, listed a position for which he had applied in a given location.
However, Santistevan and Goldsmith essentially had to admit that they did not
have any knowledge of why the Complainant might have applied for any given
position in any particular location. As Complainantís counsel pointed out on
cross-examination, if the Complainant had applied for a position in
South America
, Santistevan would have included other similar listings even though he did not
know why the Complainant might have applied for the one he hypothetically had.

The Respondent
also attacks the Complainantís decision to seek a Masterís degree in
Business. The Respondent states that the Complainant has excellent credentials
and the Respondent should not be required to pay for the Complainant to enhance
his credentials. Schutz testified that he believed that a degree would enhance
the Complainantís ability to recoup his lost wages. The Respondentís expert,
Goldsmith, did not think that such a step was called for. In this kind of battle
between experts, the Hearing Examiner finds it appropriate to fall back upon the
respective burdens of proof. It is the Respondentís burden to demonstrate a
lack of mitigation. If there is no particular reason to believe one sideís
expert over the otherís, the side with the burden fails to establish its
position by the requisite degree. That is the case in the present circumstance.

As noted above,
the Complainantís Exhibit 62 demonstrates a lengthy, though perhaps not
exhaustive job search. If that was all with which the Hearing Examiner was left
to determine mitigation, it is not clear that the Complainant would have met his
burden. However, it is far from certain that this would be the conclusion. When
the Hearing Examiner looks at the Complainantís additional efforts to replace
income through starting up a consulting business, the Hearing Examiner is
convinced that the Complainant has acted reasonably to mitigate his damages. He
has remained open to outside employment, but has taken steps to secure an income
flow for the support of his family. It is perhaps not the way that the Hearing
Examiner would have done so, but it does not appear to be an unreasonable
strategy.

Given the record
in this matter and the limitations of time, the Hearing Examiner finds the
record incomplete for firmly setting the level of back pay losses. This is
particularly true as the record did not have income values for 2005 or 2006 as
of the time of hearing. Accordingly, the Hearing Examiner will utilize the
technique used by the Equal Rights Division of the Department of Workforce
Development (ERD)(DWD). The Hearing Examiner directs the parties to exchange
information within 20 days of the date of this Memorandum with an eye towards
determining proper income offsets for the years 2005, 2006, 2007 and for 2008 to
the date of this Memorandum. If at the end of 20 days the parties cannot reach a
stipulation as to back pay damages, the Hearing Examiner will schedule further
proceedings to establish them.

Once back wage
damages are fixed, the amounts will be adjusted by pre-judgment interest.
Pre-judgment interest is applied to compensate a prevailing Complainant for the
lost opportunity cost associated with his or her deferred income.

The primary
question is what rate of interest should be utilized in fixing the rate to be
applied to back wages. In the past, the Commission has opined that 12% was
appropriate, using the then current prime rate. Reviewing courts have found this
not to be the correct measure of interest. Hilgers v. Laboratory Consulting,
Inc., MEOC Case No. 20277 (Comm. Dec. 11/18/85, 11/10/86, 3/29/89, Ex. Dec.
4/11/85, 7/12/85); Laboratory Consulting, Inc., v. Hilgers and MEOC and City
of
Madison, 85 CV 6300 (
Dane County Cir. Ct.
8/20/86); Hilgers v. Laboratory Consulting, Inc. and MEOC, and Laboratory
Consulting, Inc. v. MEOC and City of Madison, 86 CV 6488 and 86 CV 6673
(Dane County Cir. Ct. 8/24/87); Hilgers v. Laboratory Consulting, Inc. and
MEOC, and Laboratory Consulting, Inc. v. MEOC and City of Madison,
No. 87-2266 (Ct. App. 12/22/88). The Commission settled on 5% for a number
of years. However, in the latest application of this principle, Cronk v.
Reynoldís Transfer and Storage, Inc., MEOC Case No. 20022063 (Comm. Dec.
3/5/2007; Ex. Dec. 8/29/2006, other citations omitted), the Commission accepted
the stipulation of the parties to a pre-judgment rate of interest of 4%. As this
is the most recent case applying prejudgment interest, the Hearing Examiner,
absent evidence to the contrary or an agreement of the parties, will use that
percentage for the rate of prejudgment interest in the present matter.

The Hearing
Examiner now turns to ďequitableĒ remedies. The first and most appropriate
is reinstatement. Where the goal is to place a prevailing Complainant back in
the position he or she would have been in except for the act of discrimination
or retaliation, the best approach is to award the Complainant the position that
has been lost. Such a remedy results in the Complainant receiving the wages and
benefits and other privileges of employment that he or she lost and provides
them with security in the future.

However, courts
have long recognized that reinstatement, despite being preferable, is not always
possible. The circumstances that brought about the complaint or the emotions of
litigation can work to make reinstatement impractical or inadvisable. Where
conditions mediate against reinstatement, courts have, turned to the concept of
ďfront pay.Ē This is a stream of monetary damages from the Respondent to the
Complainant that is intended to, for a reasonable period of time, replace income
that has been lost and to give the Complainant the opportunity to replace that
income.

The threshold
question here is whether the Complainant can be reinstated to his position or an
equivalent position with the Respondent. On this record, the Hearing Examiner
concludes that it is not practical for the Complainant to be reinstated.

There are several
factors that lead the Hearing Examiner to this conclusion. First, the positions
of the parties have changed substantially over the period of the litigation. The
Complainant has, in part, committed himself to development and growth of a
consulting business. Leaving this enterprise to return to employment with the
Respondent may be costly and not entirely desirable. Also, the Respondent has
promoted and filled the Complainantís position with Jill Tomalin. To require
the Respondent to remove Tomalin from this position might create difficult
scenarios of employees ďbumpingĒ one another to make room for the
Complainant and Tomalin. This would tend to create friction and make the work
environment even more difficult. Tomalin was promoted to the Complainantís
position, presumably without reference to her participation in this litigation.
As such to require her to vacate the position so that the Complainant can be
reinstated would be inequitable and work an uncalled for hardship on Tomalin.

Given the
testimony of the parties at hearing, the Hearing Examiner cannot find that the
Complainant could be easily reintegrated into the workplace. The obvious
animosity between Condon, Loether, Archer and others and the Complainant is
likely to keep the Complainant from developing the trust and respect necessary
to a successful enterprise. Equally, those who testified on behalf of the
Respondent are likely to be unable to ďreviseĒ their attitudes about the
Complainant expressed during the hearing.

The years of
employment for the Complainant with the Respondent and his expertise and
knowledge mediate in favor of reinstatement; however, the Hearing Examiner
believes that the other factors including the animosity generated by this
litigation prevent reinstatement from being a reasonable remedy. Much of the
testimony at hearing reflected a level of antagonism between the parties that is
inconsistent with reinstatement. This air of confrontation carries through to
the parties post-hearing briefs. The fact that the Hearing Examiner had to
admonish counsel on several occasions during the hearing of this matter is just
a further reflection of the difficulties that would be posed by reinstatement.

With
reinstatement not being possible, the Hearing Examiner must examine whether
ďfront payĒ is required or even appropriate. Front pay is that component of
damages that is intended to replace a prevailing Complainantís lost wages
until he or she is able to replace them after he or she has reasonably mitigated
his or her wage loss. Essentially, back pay covers the Complainantís loss from
the date of discrimination or retaliation until the issuance of a decision.
Front pay covers the lost wages from the date of the decision until wages are
fully replaced so long as the Complainant is making reasonable efforts to
replace his wages.

At this point,
the record is incomplete with respect to the issue of front pay. There was much
testimony especially from the Complainantís expert on how to calculate an
appropriate front pay award. However, the Hearing Examiner lacks necessary
figures for the level of the Complainantís current income. If his consulting
business has been more successful than at first, much of the wage loss may be
moot at this point. Similarly, if the Complainant has altered his professional
goals or obtained additional employment, calculation of these damages would be
unnecessary and even inappropriate. Without a more complete record, the Hearing
Examiner is unable to judge whether front pay is appropriate at this time and if
so, in what amount. The Hearing Examiner will hold the record open pending the
parties submissions on the Complainantís income for his back pay calculation.
The Hearing Examiner will then schedule additional proceedings to obtain
additional data for determining damages. Were the Hearing Examiner to attempt to
fashion all remedies at this time, the Hearing Examiner would necessarily engage
in speculation rather than fact finding and application of facts found in the
record.

The
Hearing Examiner now turns to the issues surrounding a damage award for
emotional distress injuries. The Commission has interpreted the provisions of
MGO sec. 3.23(10)(c)(2)(b) (currently 39.03(10)(c)(2)(b)) to not only permit,
but to require an award for such damages as part of the Commissionís duty to
make a prevailing Complainant whole. This is not an exercise in punishment of
the discriminating Respondent, but reflects an attempt to help undo the effects
of discrimination for the Complainant.

Damages
for emotional distress, humiliation or embarrassment are like any other element
of a claim and must be proved by presentation of competent evidence. The
standard for this proof is by the greater weight of the credible evidence.
However, in most cases, proof need not be made by expert testimony. The
testimony of the Complainant is generally sufficient to establish entitlement to
and the degree of damages. Chomicki v. Wittekind, 128
Wis.
2d 188, 381 N.W. 2d 561 (
Ct.
App. 1985).

Over the
past 20 years, the Commission has made awards for emotional distress damages
ranging from $50.00 in Wilker v. Bermudaís Night Club, MEOC Case No.
3221 (Ex. Dec. 7/10/89) to $25,000 in Leatherberry v. GTE Directories
Sales Corp., MEOC Case No. 21124 (Ex. Dec. 1/5/93). To a great extent, the
differences in the level of award reflect the impact and the extent of the
testimony about how the Complainant was affected by the Respondentís acts of
discrimination. In Wilker, it appears that there was little testimony by
the Complainant about how deeply he was affected by denial of the opportunity to
obtain two drinks for the price of one at a ďwomenís nightĒ special
sponsored by the Respondent. In Chung v. Paisans, MEOC Case No. 21192
(Ex. Dec. liability 2/10/93), the Complainant was awarded only $750.00 because
she was more angry and offended by the Respondentís action than bothered or
hurt by the discrimination.

At one
end of the monetary damages scale, the Complainant in Leatherberry
described poignantly the impact that the Respondentís discrimination had upon
her, her family and her life. The Complainant was subjected to explicit racial
slurs from her supervisor and mentor. When she complained to those higher in the
company who should have been supportive of her, she was ignored and essentially
told to accept her treatment. The Complainantís treatment was so disturbing
that she constructively discharged herself from employment instead of continuing
to bear the discrimination. The Complainant was forced to give up a career to
which she had dedicated her professional life. She testified about how she was
troubled and how the discrimination made her feel ill. She lost sleep and
withdrew from her loved ones. The Complainantís testimony was substantially
corroborated by testimony of her husband.

In Carver-Thomas
v. Genesis Behavioral Services, Inc., MEOC Nos. 19992224 and 20002185 (Ex.
Dec. 1/25/06), the Hearing Examiner awarded $15,000.00 to Complainant for
emotional distress damages. The Hearing Examiner found that while the
Complainant experienced a period of intense emotional distress the record did
not indicate that it was particular lengthy. The Complainant was the only
witness and did not give substantial detail of how the Respondentís
discrimination affected her relationships with others or her view of herself.
While these are not necessarily markers of emotional distress, they are factors
that are often considered in making such awards.

In Laitinen-Schultz
v.
TLC
Wisconsin
Laser
Center, MEOC Case No. 19982001 (Ex. Dec. 7/1/2003), the Hearing Examiner awarded
the Complainant $15,000 for her emotional distress stemming from the
Respondentís discrimination. The Complainant, who had a congenital hip
condition, was constructively discharged after her supervisor accused the
Complainant of trying to use her disability to further her employment with the
Respondent. The Complainant also attempted to apply for a position that would
have represented a promotion, but was not selected under circumstances that
might cause one to believe her disability was a factor. Both the Complainant and
her husband testified about the impact of the Respondentís discrimination upon
her, her health and her family. Mediating against a larger award was the
Complainantís relatively quick return to public life in an election for the
local school board. Also, the Complainant did not return to the workforce for a
number of months, not because of the effects of discrimination upon her, but
because she decided to spend the summer with her children. As in Carver-Thomas,
the Complainant experienced an intense, but relatively short period of emotional
distress after the discrimination and this affected the amount of the award for
emotional distress.

In the
present case, the Complainant, as in Carver-Thomas, was the only witness
on the issue of emotional distress. However, the Complainantís testimony was
much more detailed. The Complainant described his shock at being dismissed. The
culture of the place of work at the Respondentís office was one of a close
family. The Complainant discussed his distress at being told, in effect, that he
was not wanted in this ďfamilyĒ any more. Also, the Complainantís
co-workers and colleagues made up the majority of his social circle. With his
termination, the Complainant was effectively ďshunnedĒ by his social group.
These are powerfully adverse assaults on oneís dignity.

As in Leatherberry,
the Complainant was deprived of a career that he had pursued successfully for
many years. He was acknowledged to be one of the Respondentís stars and a
likely successor to
Franklin
. The Hearing Examiner accepts that to have the years of work expended and the
promise of future acknowledgement taken away does substantial violence to
oneís self esteem and confidence.

The
Complainant testified about the emotional impact upon him as he tried to explain
to his young son why he (the Complainant) was not at work during the day. Also,
especially distressing was the loss of the Complainantís health insurance
policy and the difficulties that caused his family.

In
addition to the impact of his termination on him and his family, the Complainant
testified about his concern for friends and acquaintances who remained employed
by the Respondent. The Complainantís subordinates, at least initially, were
extremely loyal to the Complainant. (See the testimony of Vicki Hayes and Plumer
Lovelace.) The Complainant experienced anxiety for the continued employment of
these individuals as well as for friends such as Vicki Hayes and Plumer
Lovelace. While the Hearing Examiner makes no findings as to the nature of
Hayís and Lovelaceís termination, a reasonable person in the Complainantís
position could understand their terminations to have resulted from their loyalty
to the Complainant.

All
these factors make for a heavy and complex burden on the Complainant. When
combining these factors with the length of time out of equivalent employment,
the Hearing Examiner is convinced that the Complainant has experienced
substantial emotional distress, humiliation and embarrassment from being
terminated by the Respondent.

Determining
what award of damages will adequately compensate a prevailing Complainant for
emotional damages or injuries stemming from discrimination is more an art than a
science. In making such awards, the Hearing Examiner reviews the history of such
awards made under the ordinance in the past. In addition, there is a significant
element in weighing oneís personal experiences and comparing them to those of
the Complainant. Finally, one must try to quantify the totality of the record
regarding the impact of discrimination on the Complainant and assess how badly
the Complainant suffered as a result of the discrimination.

After
review of the record and after substantial thought and consideration, the
Hearing Examiner determines that an award of $75,000 will compensate the
Complainant for his emotional distress. The Hearing Examiner acknowledges that
in some ways a dollar award is inadequate to repair the injuries experienced by
discrimination. However, such awards are one of the tools available to the
Hearing Examiner to attempt to place the Complainant in the position he would
have been had the discrimination/retaliation not occurred. The Hearing Examiner
emphasizes that this award is not intended to be punitive in nature, but is
rather remedial. Given a corporation the size of the Respondent, a punitive
award would have to be substantially larger than $75,000 to have any punitive or
deterrent effect.

The
Hearing Examiner is aware that this award is three times the previous highest
award in Leatherberry. There are substantial differences in the records
between these cases that support the higher award. First is the relative levels
of employment. The Complainant was a Senior Vice-President with the realistic
hope of becoming the company president at some point. Although the Complainant
in Leatherberry had put in a number of years and had advanced within the
company, she was not at the same level of responsibility or compensation; also
she was not the primary source of income or insurance for the family. Also, she
did not have to explain to an impressionable child the reasons for a lack of
funds or why his parents are sad or not at work.

In
fixing the amount of the award in the present case at the level of $75,000, the
Hearing Examiner is assessing the injuries done to this Complainant and not
attempting to say that his injuries are three times worse than those experienced
by the Complainant in Leatherberry or that they are five times worse than
those experienced in Carver-Thomas or Laitinen-Schultz. The
Hearing Examiner references those decisions for the factors used in reaching
those awards rather than how the evidence was applied to those factors. The
factors and evidence and experience of the Complainant in the present case are
different from those in the prior cases. While some factors may be present in
this case and the older ones, it the totality of factors and evidence that lead
the Hearing Examiner to this award.

CONCLUSION

To
the foregoing reasons, the Hearing Examiner enters the above interim order.